TortsProf. Donald GiffordUniversity of Maryland School of LawFall 2008

1. ExamsA. State rules up-front

I. Assume that judge is an idiotII. Go step-by-step

B. expectationsI. has student provided what he’s looking for?

a. Objective analysis?b. Arguments for one side?c. Arguments for one side, responses from other side?d. Claims against certain defenses?

II. Issue-spotting: IRAC!a. Err on side of overinclusiveness, but don’t throw everything at wallb. Can defendant be held liable for negligence?

i. What rules and principles apply? Why? If rules don’t apply, why not? Policy? Safest to use the one we talked about in class If it’s there, talk about it

If something doesn’t apply, don’t talk about it unless askedc. Standard of care? Violation?d. Causation

i. Don’t need lengthy portion on proximate causee. Conclusion

i. He doesn’t care whether right or wrongii. But not having a conclusion will count against you

C. Break fact patterns into incidents and transactionsI. Will generally be more than one tort

D. How to screw up (or not)I. Good: Start in logical place

a. What’s chief claim plaintiff would bring?II. Bad

a. Forget major issueb. Misunderstanding major issues/doctrines/principles

E. How to take examI. Read question 3 times

a. 1: understand story, calm downb. 2: make brief organizational outlinec. 3: make sure you haven’t missed anything in outlined. this will take ~⅓ of time allocated for question

II. organization counts for a lot

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a. but nobody expects perfect structure on examIII. budget time carefullyIV. If you hit the same issue (e.g., negligence) more than once within the exam, don’t

have to repeat the rules within the same questiona. DO repeat the rules from question to question

2. General principlesA. Magical words of tort law:

I. ReasonablenessII. ForeseeableIII. MaterialIV. Defect

B. Allocative vs. distributive consequences:I. Allocative: what measures do we want to take to prevent?II. Distributive: who’s going to pay?

C. Policy behind tort lawI. Loss minimization

a. Deterb. allocative

II. Loss distribution (absorption, build into consumer price, insured)III. Moral fault (those at fault should be held accountable)IV. Conflict resolution (resolve social unrest, social welfare)V. Efficient resolution of disputesVI. Better relationship between parties

D. How to define intent in tort law:I. Defendant has to intend to do specific harmII. If defendant acts with knowledge to a substantial certainty that harm is going to

occur, that satisfies intention requirement.E. Reasonably foreseeable risk: Risk that is foreseeable to a person who has undertaken a

reasonably prudent investigation3. Bases of liability for accidental harm

A. common-law writs: trespass vs. trespass on the caseI. Writ of trespass: Immediate/direct harmII. Writ of trespass on case: Indirect or consequential harm

B. Ives v. South Buffalo Ry. Co. (Court of Appeals of NY, 1911)I. Facts

a. Plaintiff injured on job (switchman): “solely by reason of a necessary risk or danger of his employment.” Plaintiff does not claim fault on his own part. Wants compensation under article 14-a of the Labor Law, enacted in 1910 by NYS legislature.

i. According to 14-a, it doesn’t matter who’s at fault or whether anyone isII. Rests on six propositions

a. Constitutions trump statutes.i. Courts decide when constitutions conflict w/ statutes.ii. indisputable

b. Federal and NYS constitutions have similar but not identical due-process clauses that guarantee against deprivation of property without due process of law.

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i. indisputablec. Due process of law means that defendant entitled to be judged by same

principles of law operating at time of adoption of constitution.i. This is key.ii. If this and propositions 4 and 5 are valid, case correctly decided.iii. If invalid, case not correctly decided.

d. No liability without fault is one of basic principles in place at the time of adoption of US constitution.

i. Another key proposition, which isn’t true. Deodands

If a piece of chattel (usually animal) caused a death, it would be forfeited to crown and sold for profit

Principle actually did appear in US law before Ives Act of March 31, 1868 Dobbins’ Distillery v. United States

marital relationship under common law Husbands vicariously liable for actions of wives

Admiralty law Ship owners/operators obliged to care for sick/injured sailors

Ship owner/operator did not have to be negligent Sailor could even be negligent

Trespass (see next section)ii. If this and propositions 3 and 5 correct, case correctly decided.iii. If invalid, case not correctly decided.

e. NYS workers' compensation statute creates liability without fault.i. If this and propositions 4 and 5 are valid, this case correctly decided.

f. Social, economic, and moral considerations do not count.i. This rises and falls with prop. 3.

III. No workers’ comp yeta. Common law governed relationship of worker to employerb. Idea of contributory negligence

i. Employer had to be at fault for worker to get compensationii. Employee had to be free from fault in order to get reliefiii. If both were at fault: employee got nothing

c. Under workers’ comp: Employee must be guilty of willful misconduct in order for employer to avoid paying

d. Difference between workers’ comp under statutes and under common lawi. Before statutes, employee had to prove employer’s negligence

So-called “trinity of defenses” Contributory negligence

In effect until 1960s–1980s Assumption of risk

If worker proved negligence but employer showed that worker continued to work in occupation despite known risks, plaintiff could not recover

Fellow-servant rule

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If coworker caused accident and another person injured, employer was not liable.

Reasoning: By working next to someone on a regular basis, worker knew their habits and negligence better than employer did.

ii. Who decides Under statutes, it’s an administrator Under common law, court

iii. What can be recovered Common law: economic losses

Lost wages Medical bills/rehab expenses Pain and suffering Pretty much no limits on recovery amounts

workers' compensation Medical bills/rehab expenses Lost wages

Typically 2/3 or 66% Cap on amounts: usually median wage

iv. When recovery received workers' compensation: when incurred (i.e., when medical bills need to be

paid; wages on schedule; etc.) Common law: whenever judgment is final

e. Arguments in favor of workers’ comp statutesi. Loss distribution

Costs of industrial accidents will be borne by those better able to pay for them (i.e., employers) rather than those who can’t (i.e., employees)

Costs will be shared with public via cost of products companies can raise prices to recoup

Employers will be insured against losses Workers not good risk distributors (Calabresi)

Underestimate accident risk bad idea to strictly apply fault concepts to workplace accidents

ii. Widows and children Most popular argument in 1911 (when Ives decided) Industrial accident was total disaster for worker—family bankruptcy, etc.

But for company, just cost of doing businessiii. Fault system leaves many without compensationiv. Prevents antagonism between employers and employees

Loss minimization: If companies can anticipate future costs, will implement ways to minimize risk, thus fewer losses/accidents

v. Common-law system is wasteful in operationf. Influence of changes in tort law on workers’ comp and strict liability

i. In 1911, entirely based on idea of corrective justice/fairness somebody must be at fault Philosophical underpinning: restoring equilibrium

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Injurer pays injuree.ii. Compensation not in and of itself a goal of tort law

Doesn’t inherently improve society to take money from one person and give it to another

iii. Now tension between loss minimization/distribution and corrective justice Enforcing norms—what society allows and what it doesn’t Form of conflict prevention: nonviolent way to resolve disputes

g. Effects and philosophies of contemporary workers’ comp statutesi. Some number of injuries inevitable

Just part of industrial process Workers still need to be compensated

ii. Goals of workers' compensation statutes in 1911 Loss distribution Loss minimization

iii. Can’t sue employer anymore (except in NYS) very few exceptions (they violate federal law, etc.)

even if employer is negligent workers' compensation only no pain and suffering recovery

iv. Subrogation system: can only be compensated onceIV. How did Ives court get it so wrong?

a. Werner (who wrote opinion) moderate Republicanb. From 1870–1911, everything was fault/liability/negligence

i. Judges didn’t have access to hundreds of years of case lawii. Just the past 30 years or so.

C. Even if defendant was engaged in lawful/necessary activity, is still liable for damages resulting from that action

I. Weaver v. Ward (King’s Bench, 1616)a. Two army bands were skirmishing as part of exercises. Plaintiff was shot by

defendant. Defendant argues that he did not mean to shoot plaintiff, that it was accident, that he wishes it had not happened.

b. Is clear r/e no-fault liabilityc. No justification for trespass unless defendant utterly without fault.

II. See also section “necessity.”D. Shift of burden: plaintiff must prove negligence on defendant’s part, no negligence on

plaintiff’sI. Brown v. Kendall (Supreme Judicial Court of Massachusetts, 1850)

a. Plaintiff’s dog and defendant’s dog in a fight. Defendant took stick and started beating them to separate them. Defendant, whose back was to plaintiff, accidentally struck plaintiff in eye when raising stick to hit dogs. Plaintiff severely injured.

b. If fault had been fundamental principle at this time, plaintiff should have won.c. Broadens definition of “inevitable accident”

i. New meaning: accident could not have been prevented with reasonable careii. Obliterated distinction in US law between trespass and trespass on the case

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d. Plaintiff has burden of proof of showing that zie was using reasonable care and defendant was not

e. If plaintiff sustains accidental harm when defendant is engaging in lawful and proper act, defendant is not liable for damage unless defendant was not exercising proper care in undertaking said act.

i. The burden of proof is on the plaintiff to show want of proper care.f. If defendant using proper care when accident occurred, accident was involuntary

and unavoidable; he’s not liable.g. If defendant negligent, plaintiff can’t recover without showing that damage

caused entirely by defendant’s act.i. Plaintiff can’t be negligent (contributory negligence)

E. ConclusionsI. Defendant’s act had to directly produce injuryII. Possible that defendant may have prevailed at trial court by proving complete absence

of faulta. But no written opinion clearly disallowing plaintiff’s recovery because of absence

of faultIII. Before 19th century, plaintiff didn’t have to plead/prove negligence in trespass action,

and defendant wasn’t able to prevail by proving absence of it.a. Concept of negligence not sufficiently developed at that point

IV. Defendant could excuse harm only if caused by inevitable accidenta. The Case of the Thorns

F. Timeline of changing ideas of negligence:I. 1466: no faultII. 1807–1870: negligence overturns no-fault

a. Revolution in law between 1807 and 1870b. Judges overturned no-fault liability that had been in place

i. What changed definition of tort liability from no-fault to requiring liability? Number of accidental injuries increased sharply during industrial

revolution Increasing focus during 19th century on morality and wrongdoing

Second Great Awakening, WCTU, abolition, etc.III. 1870–1960: reign of negligence

a. Mostlyi. If no other principles ruled, negligence was rule of law

IV. 1960–present: negligence as defaulta. But many pockets of strict liability

i. Some pockets of no-fault liability present in 1911 grew throughout 20 th

centuryG. Distinguishing fault and causation

I. Faulta. Did defendant act with negligence?b. Did defendant act with intention?

4. Forms of Liability Without FaultA. Theories

I. Loss distribution (Calabresi)

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a. Taking large sum of money from one person more likely to result in economic dislocation (and secondary/avoidable losses) than taking series of small sums from many people.

b. Even if total economic dislocation is same, people feel they suffer less if 10k of them lose $1 than if 1 of them loses $10k.

II. Enterprise liabilitya. Puts burden of accidents on most likely insurerb. Directly accomplishes both interpersonal and intertemporal loss-spreadingc. Respondeat superior

i. Forerunner of modern enterprise liability Applies it to injuries to third parties

d. workers' compensation: applies enterprise liability to worker hirselfe. master = best insurer

i. Able to obtain lower ratesii. More aware of risks

f. Cost of activity doesn’t change just because employee not authorized or acting willfully

i. If it came out of enterprise, should be chargeable to that enterprise Like negligent torts Both should be reflected in prices But allocation of resources not so powerful/exact justification that exact

line between what arises out of enterprise and doesn’t needs to be finely drawn

B. NecessityI. In a situation where defendant chooses course of action (even if lawful/prudent) that

results in damage to plaintiff’s property, defendant is liable.a. Incomplete privilege

i. Defendant has right to be there (not trespasser)ii. but must pay restitution

b. Vincent v. Lake Erie Transportation Co. (Supreme Court of Minnesota, 1910)i. Decided before Ivesii. Defendant’s boat moored to plaintiff’s dock. Storm came up. Ship requested

tug; none available because of storm. Boat was kept tethered to dock; banged against it during storm; $500 in damages. Plaintiff claims it was negligent to moor at exposed part of wharf and to keep boat there after storm got more severe. Judgment for plaintiff; defendant appealed.

iii. Intent is not a factor in trespass: damages awarded only per hurt or lossiv. Necessity may require taking private property for public purposes, but

compensation required. Liability rule: defendant had right to use plaintiff’s property

v. Restitution/unjust enrichment One person may recover from another when one party obtains advantage

via fraud / undue advantage. Not a well-recognized doctrine Not a tort

vi. Precedent used: Ploof v. Putnam

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Boat owner not considered trespasser A party who acts to prevent a threatened injury from force of nature /

independent cause not connected to other party is said to be acting under a necessity.

Defendants acting under necessity have right to use property of others in order to save life or more valuable property

Is this the right precedent, though? Suggests negligence standard, under which defendants wouldn’t have

had to pay (unlike in Vincent).II. See also Weaver v. Ward, above.

C. Abnormally dangerous activitiesI. STRICT LIABILITYII. Cases finding liability for abnormally dangerous activities usually fall into several

specific categories.a. Hazardous waste disposalb. Gasoline storage in residential areasc. Toxic chemicals and gasesd. Blasting and storage of explosivese. Escape of water and other liquids

i. Fletcher v. Rylands, belowIII.Restatement provisions for abnormally dangerous activities

a. Restatement (Second) §520: provisionsi. Six factors (2HGECIV: Twice Henry, George, Edward Caught In Vacuum)

Whether the activity involves a high degree of risk of some harm to the person, land, or chattels of others

Whether the gravity of the harm which may result from it is likely to be great

Whether the risk cannot be eliminated by the exercise of reasonable care

Whether the activity is not a matter of common usage Whether the activity is inappropriate to the place where it is carried

on Probably most important factor Something dangerous in one area might not be dangerous in another

The value of the activity to the communityii. Balancing test

Don’t have to have all sixiii. Heavily criticized

Should “appropriateness of the location” be its own factor, or should it just help determine reasonableness of risk?

Social value factor subjectiveb. Restatement (Third) provisions (3FSCU: 3 Florida State Championships—Ugh)c. An activity is abnormally dangerous if

i. the activity creates a foreseeable and highly significant risk of harm even when reasonable care is exercised

ii. the activity is not a matter of common usage.

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IV. Any person who brings a potentially dangerous thing onto his property does so at his peril, and is responsible for any damage that thing may cause.

a. A person who uses land for a nonnatural use, or alters land, or introduces into the land a natural condition in a nonnatural way, does so at his own peril.

i. Fletcher v. Rylands (Court of Exchequer, 1865) Plaintiff sank a pit for coal mining. Ten years later, defendants made a

reservoir near mine to hold water for their mill. During excavations, ran into old coal workings, but very old and filled with dirt. Old coal workings connected to plaintiff’s coal workings. Defendants not aware of old workings, but appropriate care/skill not used by their employees (who were aware) to ensure that the reservoir, when full, would be able to withstand the weight of the water. Reservoir was filled; shaft burst; plaintiff’s mine flooded.

If water had occurred naturally on defendant’s land, its accumulation and passage onto plaintiff’s property would not be defendant’s responsibility.

Ordinary use of land = no strict liability But this is nonnatural use of land

Water/reservoir did not naturally occur there It isn’t clear whether use of the land has to be nonnatural, or that

the harmful agent be artificially there rather than naturally so Agriculture “natural” use, but people liable for damage by

escaping cattle Water wouldn’t have been there but for defendant’s act.

Their innocence (lack of knowledge) immaterial Even if defendant exercises due diligence, is still responsible

ii. Yommer v. McKenzie (Court of Appeals of Maryland, 1969) The McKenzies live next door to the Yommers, who run a grocery store

and gas station. Mr. McKenzie noticed a smell in their well water; turned out to be gasoline. McKenzies complained; Yommers replaced tank. Water still undrinkable.

Cites Restatement (Second) Weighs #5 (appropriateness) most heavily

In general, gas stations not dangerous Putting a gas tank next to family well inappropriate to locale

Activity may not be danger in itself, but may be abnormally so in relation to surroundings

V. When negligence works as the controlling regime for torts liability in a particular case, there’s no reason to use strict liability as the control.

a. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (US Court of Appeals, 7th Circuit [Posner], 1990)

i. At Louisiana plant, defendant loaded 20,000 gallons of acrylonitrile onto tank car leased from another company. Taken via several carriers to plaintiff’s switching yard in metro Chicago. Employees noticed liquid gushing from its bottom outlet: lid broken. Took 2 hours to engage shut-off valve and stop leak. About ¼ of the acrylonitrile had leaked. IL Dept of Enviro

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Protection ordered plaintiff to take decontamination measures; cost was $981,022.75. Plaintiff sued manufacturer to recover this amount. Two counts on complaint:

Tank car maintained negligently Transportation of that quantity of acrylonitrile through Chicago metro area

abnormally dangerous and thus defendant strictly liable to plaintiffii. Negligence: baseline common-law regime of tort liability

When it works, no need to switch to strict liability Posner: best way to ensure safety precautions is to use negligence regime As a result of Posner’s opinion here, revisions to Restatement proposed

iii. Important Restatement factors here: can’t be eliminated by exercise of reasonable care, inappropriate for location

Leak not caused by inherent properties of acrylonitrile If tank car carefully maintained, chance of leak very small

Thus transport of acrylonitrile is not abnormally dangerous activity

No reason to go to strict liability Which imposes liability for negligence here

Inappropriate for location? Alternate route (minimization) unfeasible due to hub-and-spoke nature

of railroads Is more appropriate to ship hazardous material through metro Chicago,

or to live near railroad yard?VI. contributory negligence and abnormally dangerous activities

a. If plaintiff was aware of risk from abnormally dangerous activity and chose to encounter it, would probably be contributorily negligent

b. if plaintiff failed to appreciate danger of activity (even if unreasonably), wouldn’t be contributorily negligent

c. In contributory negligence jurisdiction, plaintiff’s simple carelessness/negligence would bar recovery

i. In comparative fault jurisdiction, would reduce recoveryD. Nuisance

I. Historya. Until 1890s/1900, nuisances were strict liabilityb. 1910/1920: negligence regime takes overc. Later, with Second Restatement, 3 different ways to define a nuisance (below)

II. Private nuisancea. interference with plaintiff’s use and enjoyment of their land when such

interference is one of following:i. Intentional and unreasonable

Doesn’t mean intention to cause harm But defendant does know that behavior is offensive to plaintiff

ii. Negligentiii. Abnormally dangerous activity that creates strict liability

b. Duty: use reasonable care to avoid interfering with neighbor’s use and enjoyment of land

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c. Not invasive injuries (one individual does not go onto another individual’s property)

d. Difference between this tort and most others: defined by nature of plaintiff’s injury.

i. Most others: Defined by level of egregiousness of defendant’s conducte. Public Service Co. of Colorado v. Van Wyk (Supreme Court of Colorado, 2001)

i. PUC upgraded aboveground electric line. Van Wyks and other residents sued for nuisance on the behalf of all residents within 300 feet of the line, alleging that PSCo acted intentionally by sending 230kV of electricity through the line, creating noise, an electromagnetic field, and radiation particles.

ii. Applies rule of intentional nuisance per Restatement (Second) of Torts, §825. If defendant persists with activity despite notice that “invasion interfering

with the use and enjoyment of the plaintiff’s property has occurred,” that counts too.

f. When social utility of defendant is judged to be greater than harm caused, court may grant a conditional injunction, allowing defendant to pay damages rather than cease nuisance-causing conduct.

i. Boomer v. Atlantic Cement Co. (Court of Appeals of New York, 1970) OVERTURNED THE PRECEDENT

Previously: nuisance injunction Residents near a large cement plant filed charges alleging injury to

property due to pollution and vibration from plant. Environmental protection policies are government’s job. Conditional injunction

Permanently closing plant would be economically devastating (loss of jobs, etc.)

Solution: Grant injunction unless defendant pays plaintiffs permanent damages.

Once these damages paid, plaintiffs/grantees can’t collect any more: servitude on land

Dissent This says that it’s OK to cause harm to others as long as you pay for it. Also, once damages are paid, defendant has no incentive not to pollute.

So let’s say they had in fact granted injunction. What would have happened?

Probably defendant would have settled, bought out homeowners. Much higher settlement costs for defendant.

III.Public nuisancea. definitions

i. Statutory: State legislature at any time can define anything as public nuisance. Main category of public nuisances

ii. common-law/Restatement: An interference with “a right common to the general public”

Obstructing highways, interfering with parkland, etc.

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b. Coming to the nuisance: plaintiff purchased property with advance knowledge that nuisance exists

i. Restatement view Not an absolute defense as matter of law Just a factor to be considered

ii. More likely to be successful if defendant’s activity is appropriate for area and plaintiff’s use isn’t

iii. Can also work against development: areas change and populations growiv. How to balance between defendant who didn’t do anything wrong and

homeowners who are being adversely affected? Spur Industries, Inc. v. Del E. Webb Development Co. (Supreme Court of

Arizona, In Banc; 1970) Defendant had built houses 2.5 miles north of Spur feedlot. Odors not

problem at that point. Webb continued to expand, but land became difficult/impossible to sell. Webb sued: Spur feedlot nuisance because of flies and odor.

landowner can’t get relief if he knowingly moves somewhere near agriculture/industry and suffers damage.

But plaintiff not only party injured here Spur in fairly remote location; no way of predicting that new city

would spring up right next door. Solution: compensated injunction!

Webb entitled to injunction because of damage to people who bought his houses.

However, Spur sustains damages from injunction. So Webb must compensate Spur for moving/closing.

Plaintiff’s entitlement (to use land as zie sees fit without being subject to pollution)

Defendant’s entitlement (to use land as zie sees fit—including polluting neighbor’s land)

Protected by a property rulePlaintiff gets injunction (traditional NY rule)

Plaintiff’s case dismissed

Protected by a liability rulePlaintiff gets damages only (Boomer)

Purchased injunction (Spur v. Del Webb)

E. AnimalsI. A person is strictly liable for all damage done by any “wild” or dangerous animal

that they keep.a. Damage must result from “dangerous propensity” typical of the species or of the

particular animalb. Wild = not domesticated

i. Domesticated (per Restatement) = “by custom devoted to the service of mankind”

Domesticated animals: assumed to be harmless unless it’s proven that they’re not

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Liability rule: negligence Includes animals (bees, bulls, etc.) that can be dangerous

Ownership of these animals serves social use Shouldn’t be discouraged by excessive liability

ii. Strict liability applies to wild animals as deemed by their class, not the individual animal.

Behrens v. Bertram Mills Circus Ltd. (Queen’s Bench Division, 1957) Plaintiff’s daughter brought her small dog to her parents’ concession

booth at defendant’s fair. Dog escaped and ran into elephant procession, frightening the elephants. The dog ran into plaintiff’s booth; Bullu the elephant followed, knocking down the front of the booth, injuring the plaintiffs, and killing the dog.

All animals not by nature harmless or not domesticated are assumed to be dangerous.

II. Property damage caused by escaping animals: a. Rylands v. Fletcher: strict liabilityb. But in US, because of cattle roaming free in West, this rule didn’t develop to

same extentF. Vicarious liability

I. Vast majority of torts are vicarious-liability tortsII. Respondeat superior

a. If employee commits tort during the “scope of hir employment,” the employer will (jointly with the employee) be liable.

i. “scope of employment” generally, when tortfeasor acting with intent to further employer’s

business purpose even if method indirect/unwise/forbidden

“frolic and detour” employee on business trip, goes on side trip traditional view

on first leg of trip, employee not within scope of employment as soon as employee begins to return to path of original business

trip, back within scope of employment modern view: if deviation “reasonably foreseeable,” employee is

within scope of businessb. criticized, yet adhered to.c. 2 justifications for holding employer liable

i. Loss distribution: employer can generally distribute the costs widely by increasing costs of goods or having insurance

ii. Loss minimization: it will encourage employers to be more careful in choosing and training employees.

d. Per the modern construction of respondeat superior, the government is liable for damages done by service members while they are stationed at military installations.

i. Taber v. Maine (US Court of Appeals for the Second Circuit, 1995)

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Defendant stationed on Guam, went on liberty. Started drinking by noon, continued throughout day. Around 11:30 p.m., decided to drive off base to get something to eat. Got in accident with a car driven by plaintiff, who was severely injured. Plaintiff filed suit against Maine and US government in federal court under Federal Tort Claims Act (FTCA). Government moved for summary judgment, saying that Maine’s conduct was outside scope of his military service. Summary judgment granted, but suit proceeded against Maine. Judgment for plaintiff; $300k in damages. Taber appealed.

FTCA allows civil suits against government based on negligence armed-services members acting “in the line of duty”

Courts have equated “line of duty” with “scope of employment” Rodgers v. Kemper Construction Co.: After-hours social activities on

employer’s premises, if “a customary incident of the employment relationship,” are included.

Childers v. Shasta Livestock Auction Yard, Inc.: injuries don’t have to occur on work site as long as activities that caused employee to be dangerous to self/others occurred “within…scope of employment”

What acts will the employer be held strictly liable for? Control: if fed govt had right to control the individual, then the govt is

liable Where employer has implicitly endorsed/permitted activity that led to

harm traditional test: is the employee acting to benefit or profit the

employer? New test from this case: The employee may be held liable for risks

that may fairly be regarded as typical of the enterprise. Drunken service member leaving government premises and

causing trouble obvious risk of general enterprise of military base

Older tests still used in most jurisdictions, though.III. The employee must be either negligent or have committed a tortious act for there to

be vicarious liability.a. Vicarious liability ≠ strict liability

IV. Contractors vs. employeesa. Employers not typically liable for actions of independent contractors

i. Contractors hired for taskii. Employer has no right to physical control

b. to distinguish between employee and contractor:i. courts sometimes look at…

whether person works for one employer vs. multiple degree of expertise

if high, person may be independent contractor but these are just factors

ii. test: was act carried out under employment?

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Did employer have right to physical control?c. If a principal manifests that a contractor is an agent of the principal, such that a

reasonable person would have cause to believe that zie is dealing with an agent of the principal, then the principal is vicariously liable for any negligent conduct of the independent contractor.

i. Sword v. NKC Hospitals (Supreme Court of Indiana, 1999) Plaintiff gave birth at Norton (hospital). Norton’s services, including a

staff of “experts in administering continuous epidural anesthesia,” were advertised throughout area. During labor, an anesthesiologist explained the epidural procedure to her and prepared to begin the procedure. A second anesthesiologist, Dr. Luna, inserted the epidural tubing, then said that it “did not take” and reinserted it in a different place. After delivery, plaintiff began to suffer headaches. Plaintiff also feels numbness at site of the second epidural.

Applicable tort theory: respondeat superior Master typically held responsible for servant’s behavior, but not so

with employer and independent contractor. Test r/e apparent agency

Two parts whether employer acted in a manner that would lead a reasonable

person to conclude individual was an employee. Whether the injured reasonably acted in reliance on employer’s

manifestations. hospital will be deemed to have held itself out as a provider of care

unless it tells the patient otherwise and says that it’s given by an independent contractor.

V. Nondelegable dutya. Two classes

i. Inherently dangerous activitiesii. Safety statute

b. A person who engages in inherently dangerous activities and relies on contractor to maintain instruments of those activities is liable for any damages caused by those activities.

i. Maloney v. Rath (Supreme Court of California, In Bank; 1968) Defendant’s brakes failed, causing collision with plaintiff. Brakes had

been overhauled ~3 months before accident, and she did not know or have reason to know that they were defective. Error in service during overhaul.

State statute: owner responsible for having car with brakes in good working condition

Safety statute creates nondelegable duty The concept of nondelegable duty exists to assure that, when negligence

leads to harm, the injured party will be compensated by person whose activity caused harm and who is responsible for negligence of agent, whether agent is employee or independent contractor

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Eliminates need for strict liability, because there will be a financially responsible defendant.

But somebody had to be negligent for this rule to kick in If brakes had just failed on their own (mechanical failure,

whatever), no one would be liable But because mechanic had been negligent, liability kicked in

And because duty nondelegable, owner of car considered liable even without showing of fault on her part

inherently dangerous activity Cannot be done safely. common-law category

Inherently dangerous: nondelegable duty abnormally dangerous: strict liability Unreasonably dangerous: product liability

Why hold car owner liable when the mechanic screwed up? Loss distribution.

Car owner most likely insured. This decision NOT followed by most jurisdictions.

5. TrespassA. Any physical intrusion onto another’s property that interferes with hir interest in

exclusive possessionI. Can be intentional or negligent.II. Harder to prove than nuisance.III. Martin v. Reynolds Metals Co. (Supreme Court of Oregon, En Banc; 1959)

a. Defendant’s aluminum production plant released into the air gases and particulates containing fluoride compounds, which made land unfit for raising livestock. Plaintiffs’ cattle ingested these compounds via contaminated flora and water. Trial court: damages of $91,500 for plaintiff.

b. In r/e intrusion on another’s land, better to define by energy/force rather than sizei. Particles are small, but are still a physical intrusion.

c. Tort of trespass composed of componentsi. Character (including magnitude) of defendant’s conduct in causing intrusionii. Character (including magnitude) of harm visited on plaintiff

d. Damages from chemical particles direct and consequentiali. Thus within definition of trespass

B. Affirmative defense: necessity6. Fault

A. DutyI. Contemporary torts doctrine repudiates notion of degrees of care

a. general requirement to take carei. rather than multiple “duties” whose breach = negligenceii. More general scope of liability less chance of exceptions

b. Exception: majority of courts require common carriers to exercise highest degree of care

i. Why are common carriers held to higher standard of care? Risk of harm patently present when transporting people

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One party is in exclusive control of another Great disparity of power between parties

ii. Exception to exception: A common carrier owes due care to its passengers; however, because of the nature of the business, due care for a carrier may require more precautions than due care for a business with no human risk.

Minority view Frederick v. City of Detroit, Dep’t of Street Railways (Supreme Court of

Michigan, 1963) Plaintiff sued city, alleging that she slipped on worn, dirty flooring of a

bus and fell down the step to the street. She alleged that because of the city’s negligent omission to provide a railing on the step, she fell and was injured.

Common-law standard of reasonable care constant Even if it involves many precautions because of situation

Why does it make a difference whether we call it due care (with numerous precautions) or higher degree of care?

Due care (with precautions) leaves determination of standard of care to jury

Higher degree of care puts requirements for care into law The carriers want this! They don’t want to go to jury.

II. Different extents of duty owed to different classes of people: employees, customers, trespassers, etc.

a. Person can owe duty to another even without contracti. If person/property in proximity to another person/property so that damage

might be done if due care not taken Proximity

Not necessarily physical/geographical Close/direct relations such that one party knows the other will be

affected by their actIII. Conduct during emergency judged differently than everyday conduct

a. No liability for errors of judgment if they result from “the excitement and confusion of the moment” (Wagner v. International Ry. Co.)

B. NegligenceI. Definition: the omission to do something which a reasonable man…would do, or

doing something which a prudent and reasonable man would not do.II. Elements

a. Dutyi. Is a duty owed?ii. What is standard of care?

b. Breach (violation) of dutyc. Causation

i. Cause in factii. Proximate cause

Aka, more properly, “scope of liability” [Restatement (Third)]d. Injury

i. Usually tangible physical injury or property damage

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ii. No harm, no foulIII. What type of risk should defendant account for?

a. Reasonably foreseeable: Risks that are foreseeable to a person who has undertaken a reasonably prudent investigation

i. UNIVERSAL CONSTANT OF TORT LAWIV. If a person/entity exercises due care based on ordinary circumstances, they are not

liable for damage that occurs because of especially severe/extreme circumstances.a. Blyth v. Birmingham Waterworks Co. (Court of Exchequer, 1856)

i. Large amount of water flooded from main into plaintiff’s house. Main-pipe opposite plaintiff’s house was more than 18 inches below ground, constructed according to best known system, materials sound and in good working order. Defendant’s engineer suggested that possibly caused by frost.

ii. Reasonable person would act according to average weather in ordinary years Not negligent because precautions inadequate against especially severe

frost, which froze ground much deeper than usual.iii. Definition of negligence used by this court: Negligence is the omission to do

something which a reasonable man…would do, or doing something which a prudent and reasonable man would not do.

V. Every time a person acts, zie owes a duty of reasonable care to anyone who might reasonably foreseeably be injured as a result of actions

a. National Food Stores, Inc. v. Union Electric Co. (Missouri Court of Appeals, 1973)

i. Record-breaking summer heat wave. Defendant carried out first phase of emergency load reduction: cut power to “interruptible customers.” Skipped phase two; went to phase three of contacting 200 largest industrial customers, asking them to voluntarily reduce usage. Skipped phase four (notifying media); went to phase five, cutting service periodically to various areas throughout metro St. Louis. Food in plaintiff’s stores spoiled.

ii. Emergency doesn’t eliminate duty to exercise reasonable care to avoid undue harm to customers when harm is reasonably foreseeable.

Right to interrupt service ≠ right to do so without reasonable notice when interruption anticipated and harm foreseeable.

Duty to notify customer: from common law This principle not universally accepted among US states

Southern and Western states: Plaintiff must identify independent source of duty. No common-law obligation.

VI. D must act affirmatively to be held negligent a. Yania v. Bigan (Supreme Court of Pennsylvania, 1959)

i. Defendant owns a strip-mine. Defendant asked decedent to help him start the pump that removed water from a trench. Decedent jumped into the water and drowned. Plaintiff claims that defendant incited decedent to jump into water and made no effort to help him or get him out.

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ii. Taunting and enticement into a dangerous situation do not constitute actionable negligence when the victim is an adult in full possession of hir faculties.

Because the taunter/enticer was not legally responsible for putting the victim in that position, zie does not have a duty to rescue hir.

iii. If you are affirmatively acting, you owe duty of care to those who are reasonably foreseeably victims of this action

But there’s not an obligation to act affirmatively, even if it’s reasonable to do so and harm will occur if you don’t.

C. The reasonable personI. Jury supposed to be his equivalentII. Restatement (Second): person required to know everything r/e risk of harm that’s

common knowledge in community where conduct occursa. What about someone with exceptional skills/knowledge?

i. Expected to exercise them with reasonable attention and care Some courts disagree

III. A person must exercise caution such that a person of ordinary prudence would observe; if not, zie is liable for negligence.

a. Vaughan v. Menlove (Common Pleas, 1837)i. INTRODUCED THE REASONABLE PERSONii. Defendant charged with negligence in maintaining a stack of hay, which

spontaneously combusted and burned plaintiff’s cottages. The stack was near the property line, and there had been discussion about the possibility of fire, which defendant said “he would chance.”

iii. rule of law sez you can’t enjoy your property in a way that injures someone else

iv. Rather than trying to figure out what best judgment would be for every single defendant, stick to single “reasonable person” standard.

The reasonable-person standard does not take into account differences in temperament, intellect, or education.

IV. Mental and physical disabilities must be taken into account when determining negligence.

a. Fundamental distinction in law between physical and mental disabilitiesi. Physical: held to standard of ordinary reasonable person with whatever

disability it is can’t expect the impossible have warning of phys. dis. (visually) hard to fake identifiable physical disability

ii. Mental: held to objective ordinary reasonable person standardb. A person with disabilities is required to exercise ordinary care to avoid injury; zie

is not required to exercise greater care than a person with no disabilities.i. Memorial Hospital of South Bend, Inc. v. Scott (Supreme Court of Indiana,

1973) Plaintiff has MS, with symptoms including lack of muscle coordination

and impaired vision. While hospitalized, plaintiff needed to use the restroom. Toilet flusher was located near the small of his back; bed

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pan hot-water knob was located at shoulder level. Plaintiff was not warned that the bed pan hot-water knob was there. Plaintiff remembers touching a knob, and then the hot water.

Restatement (Second): contributory negligence is conduct on plaintiff’s part that falls below standard zie is required to conform to for hir own protection.

Correct standard: What would reasonable man with similar disabilities/infirmities do in same circumstances?

Hospital’s negligence: Where knobs were located Staff didn’t inform defendant of hazard in flushing toilet

ii. no strict liability for car accidents stemming from disabilities Hammontree v. Jenner (Court of Appeal of California, 1971)

Defendant driving home from work; plaintiff working in her/her husband’s bike shop. Defendant’s car crashed through shop wall, injuring her and causing damage to the shop. Defendant claims he became unconscious and lost control of car during epileptic seizure. Has medical history of epilepsy, but has been under treatment for it and has followed docs’ instructions to avoid seizures.

Defendant judged by objective standard of reasonable person with epilepsy

He’d taken all necessary precautions Maloney v. Rath doesn’t apply here because that was statutory

law imposes strict liability for nondelegable dutiesiii. This is inconsistent with most American jurisprudence on topic

Menlove is prevailing standardc. A person institutionalized with a mental disability who does not have the capacity

to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation.

i. Gould v. American Family Mut. Ins. Co. (Supreme Court of Wisconsin, 1996) Defendant was insurer for Roland Monicken, who suffered from

Alzheimer’s. Ms. Gould, who was head nurse at the facility where he lived, suffered personal injuries when Monicken knocked her to the floor.

Most jurisdictions: mentally disabled adults held responsible for torts they commit (German Mut. Fire Ins. Soc’y v. Meyer).

rationale if loss has to be borne by one of two innocent people, it should be

the person who caused it inducement for family, etc., to keep mentally disabled person from

causing harm Also, people won’t feign insanity to get out of wrongful acts

Circumstances of this case negate Meyer rule Ms. Gould not innocent member of public who couldn’t predict

harm

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She was employed to handle dementia patients Was aware of risks

Too great a burden on Monicken: disorientation/outbursts were the reason he was hospitalized

Monicken’s relatives did everything they could to restrain him (by putting him in secured dementia ward)

Monicken obv not faking itd. What about person of exceptional ability?

i. A professional in recognized profession is typically held to higher standardii. A person of exceptional ability (stronger than most, smarter than most, etc.)—

not a clear legal answer. Restatement (Second): Held to higher standard. Some courts say no different standard.

iii. Generally if person is not discernibly exceptional (either gifted or disabled) such that other people have no warning, they’re held to ordinary reasonable person standard

V. Childrena. Restatement (Third): Children held to a standard of reasonable children of similar

age, mental ability, and experience i. Reasoning

Can’t expect them to behave like adults Members of public can easily tell that they’re children

And hence know to take care If suit involves kid who has gotten hurt, some element of what we’d

consider contributory negligence for an adult is usually present. But if child held to adult standards, would never recover in these cases.

Kids don’t inflict that many tortious injuries on other people. Unlikely that anyone’s going to pretend to be a kid in order to get out of

liabilityii. Exception: When children engaged hazardous, licensed activities

(cars/boats/planes/etc.), held to same standard as adults Dellwo v. Pearson (Supreme Court of Minnesota, 1961)

Defendant: 12-year-old boy. Plaintiff’s boat trolling at low speed with 40–50-foot fishing line behind it. Defendant was operating boat with outboard motor; crossed fishing line, which got wrapped up in his propeller; plaintiff’s reel came apart and hit her in eye.

Why is there an exception here? Plaintiff couldn’t tell that boat operated by child

Couldn’t protect herself Courts split on applying adult standard to “adult” activities beyond

licensed ones (hunting, golfing, etc.)D. Respective roles of judge and jury

I. Judge determines if there is enough evidence for the case to go to the juryII. Judge determines the law in the form of jury instructionsIII. judge-made standards

a. In situations that frequently reoccur, standard of care should be set by court.

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i. Lorenzo v. Wirth (Supreme Judicial Court of Massachusetts, 1898) Workers shoveling coal into coal hole on D’s property at night. Hole was

full so it looked even. Foreign woman walked on hole and fell in, claims that there should have been sign/some sort of warning. Ordinary reasonable person in Boston in the 1890’s would have known of the danger but not a foreigner.

Opinion (Holmes) directed verdict for D should have been granted on grounds of

insufficient evidence Also says the D can assume P has common knowledge of the public in

that locale. Dissent (Knowlton)

more commonly accepted it is foreseeable that an immigrant wouldn’t know customs

b. OLD R00L: When a standard of conduct is clear, it should be laid down by the court.

i. Baltimore & Ohio R. R. Co. v. Goodman (US Supreme Court, 1927) Decedent killed by train at RR crossing. Was driving a truck; hit by train

going at least 60 mph. Line straight, but plaintiff claims that decedent not able to see after passing section house 243 feet from crossing; had been going 10–12 mph, but then slowed down to 5–6 mph 40 feet from crossing. It was daylight; he knew the area.

Holmes: Due care usually left to jury, but this is standard of conduct.ii. Overruled by Pokora v. Wabash R. Co., below.

c. N00 R00L: Strict rules for standards of behavior likely to be too inflexible.i. Pokora v. Wabash R. Co. (US Supreme Court, 1934)

Similar set of facts to Goodman. Cardozo: Court should be cautious r/e framing standards of behavior that

amount to rules of law Esp. when there’s not much background for these sorts of situations

and standards have not had a chance to emerge Rules then not reflection of customary behavior, but developed

artificially and imposed from without.E. Cost-benefit analysis

I. a reasonable person is a rational person, and therefore makes decisions using a cost-benefit analysis.

a. Negligence is failing to follow cost- benefit analysis.II. Theories

a. Learned Hand formulai. an economic meaning to negligenceii. B < L x P

the Probability that his conduct will injure others the seriousness of the injury if it happens (L) Burden of avoiding risk

iii. Solution always involves preference or choice between incommensurables

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Goes to jury because their decision thought most likely to accord with commonly accepted standards

b. Restatement (Second): the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.

c. Posneri. Main function of fault system: make rules of liability to ensure efficient (cost-

justified) level of accidents and safety If cost of safety measures > benefit gained by incurring that cost, then

better economically for society not to prevent accidentii. In negligence, D is liable only when he makes a wrong decision using a cost-

benefit analysis. d. Fundamental issue of tort law: whether fault-based system or strict liability

standard will produce lowest accident costs, costs of preventing accidents, and transaction/admin costs.

i. Coase Theorem In a world without significant transaction costs, the liability rule would not

ultimately affect the level of safety precaution. Market negotiations between actor and those affected by conduct

would achieve the same equilibrium.ii. Calabresi

Will any general rule for allocating accident costs, predicated on negligence or not, will lead to optimal resource allocation?

Transactions often expensive Often not worth spending both transaction costs and amount

needed to bribe someone to diminish accident-causing behaviorIII. Duty to adopt all reasonable precautions, but if danger unforeseeable, unprecedented,

then not negligent.a. Adams v. Bullock (Court of Appeals of NY, 1898)

i. Defendant runs trolley line, which uses overhead wire system. At one point, a bridge runs above the road (and wires); it’s commonly used as a shortcut, and kids play there. Plaintiff came across bridge swinging 8-foot wire. It hit electrical wires; plaintiff shocked and burned.

ii. no reasonable way to prevent child hitting trolley cable with wire No vigilance could have predicted how/where this accident might have

occurred. Defendant exercised reasonable precautions.

iii. When exercising lawful franchise, not liable for those dangers that are not within the ordinary prevision.

iv. costs of putting the trolley line underground much greater than the cost of an unlikely risk of harm

F. The role of customI. OLD R00L: If the tools, systems, and appliances provided are safe if used with

reasonable care and are standard to the industry, the employer is not liable for accidents.

a. Lehigh & Wilkes-Barre Coal Co. v. Hayes (Supreme Court of PA, 1889)

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i. Plaintiffs’ son worked in defendant’s mine. Large car of coal drawn from chute; a large amount of coal fell on the decedent and killed him. Plaintiffs charge that decedent should have been warned that car was about to be drawn, but apparently decedent had asked via another employee for the car to be drawn out.

ii. No evidence that machinery defective or constructed differently from machinery in other mines

iii. No evidence of custom in coal mines to give warnings like thisiv. Employers must supply tools/appliances that are safe if used with reasonable

care, but they don’t have to be the best/safest available.v. Era: height of robber barons.

Confidence in free marketb. N00 R00L: Standard of custom ≠ standard of law

i. La Sell v. Tri-States Theatre Corporation (Supreme Court of IA, 1943) Plaintiff went to movie theatre, was seated by usher in row with step-up

between seats and aisle. Plaintiff got up, did not know step-up was there, lost her balance and fell, hitting her head. Defendant had motioned for directed verdict, claiming that theatre constructed and lit in approved manner and as customary for lighting/constructing theatres of this type.

Correspondence with custom of trade/industry in most instances does not establish defense as matter of law to negligence action

Evidence of custom is admissible as evidence and can be considered by jury

Operators of hazardous businesses must assume burdens and take precautions that an ordinarily and reasonably prudent person would; these are considered due care for these types of businesses.

Quotes The T. J. Hooper (Learned Hand) It’s possible for an entire industry to lag behind Sometimes jury’s sense of what’s negligent will differ from custom,

and that’s just fine Era: Great Depression had happened

People didn’t trust free market anymorec. Subsequent repairs/remodeling as evidence of negligence:

i. Black letter: If this is admitted as evidence, will discourage people from making repairs. It shouldn’t be admitted.

This rule has exceptions all over the place. Court made one here: Show that repairs feasible.

II. malpracticea. Proof that care given accords with any practices accepted by any responsible

physician = malpractice shield in most courtsi. Consequence: requirement for expert testimony to establish standard of care

When required in medical malpractice cases Risks of surgery Cause of injury

When not required in med mal

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To show materiality of risks To show what reasonably prudent person would have done Whether doc has a duty to inform

What about for nonmedical negligence cases? Expert testimony then? If it’s related to science/profession that average layperson won’t

understand, then usually expert testimony is required ii. Three possible standards

Same-locality rule Problem: If you need expert from within small community, conspiracy

of silence Same-or-similar-locality rule: look at location/environs as well as

communities that are similar to it 1970s/1980s: trend away from this and same-locality rule (which had

been prevailing standards) General (national) standard: degree of care and skill of average qualified

practitioner Brune v. Belinkoff (Supreme Judicial Court of Massachusetts, 1968)

Plaintiff had baby in New Bedford, MA. Defendant gave her 8 mg of pontocaine. When plaintiff tried to get out of bed, fell down. Ongoing numbness/weakness in left leg. Ample evidence that condition came from excessive dosage of pontocaine. Some docs said that 8 mg excessive and 5 mg or less proper; others that 8 mg correct. Evidence that 8 mg customary in New Bedford with a vaginal delivery.

NEW STANDARD Locality rule overturned!

Medical profession shouldn’t be split up into differing geographic standards

But OK to consider resources available as one circumstance How does this matter r/e expert witnesses?

Have to have expert witness to testify what the standard of care is, and an expert witness to testify that the doc breached the standard of care

In same-locale rule, someone else from community has to testify General standard: doc from anywhere (including major urban centers)

can testify Less likely to be biased BUT you can pretty much find an expert witness to testify to

anything So, backlash against this in 1980s

Some jurisdictions have combined rules: same/similar-locality rule for GPs, national standard for specialists

MD has really crazy rule (p. 218): standard is same/similar locale with same training and experience

b. Minority rulesi. can be held liable for malpractice even if actions customary practice

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Canterbury v. Spence (Court of Appeals for the District of Columbia, 1972)

Doc told plaintiff he needed surgery. Plaintiff didn’t object or ask r/e specifics. Plaintiff’s mom asked whether operation serious; doc said “not any more than any other operation.” Plaintiff had surgery, seemed to be recovering, but then had fall in hospital. Left unattended while trying to use restroom. Paralysis almost total from waist down.

Doc not telling plaintiff r/e risk of paralysis = prima facie violation of doc’s duty to disclose

Due care r/e disclosure = … therapy alternatives, goals, risks in nontechnical terms Benefits of treatment/what could happen if person doesn’t have

procedure How in-depth does doc have to go?

Custom standard (majority rule) Materiality standard (this case): Info to which reasonable

person would attach significance in decision whether to proceed with surgery.

Doesn’t apply in certain situations Patient unconscious/incapacitated When disclosure unfeasible/contraindicated from medical point

of view (as in, person will freak out and have heart attack)—category narrowly defined

Duty to disclose shouldn’t depend on common practice in community Docs shouldn’t just be able to set standard for themselves courts still disagree on this

Must be causal relationship between nondisclosure and harm to patient i.e., info disclosed would have made patient decide against

treatment Objective test (minority rule): what would reasonable person

have done if they had known this info? Subjective test (majority rule): what this particular patient

would have done Duty-to-disclose cases: focus more on nature/content of doc’s

disclosure than on patient’s understanding Main inquiry: did doc fulfill obligation of disclosure?

Different from “informed consent,” which considers patient’s comprehension as decisive factor

ii. Sometimes courts will say that decision/action leading to injury wasn’t medical decision (frame as administrative decision, etc.)

G. Negligence per seI. General rules

a. plaintiff must be among class of individuals statute intended to protect and injuries are the variety the statute designed to prevent

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b. Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect.

i. CLASSIC FORMULATION OF NEGLIGENCE PER SE DOCTRINEii. Osborne v. McMasters (Supreme Court of MN, 1889)

c. Just because defendant complies with all statutes and regulations doesn’t mean they’ve done enough to avoid liability for negligence

II. If defendant violates a statute designed to protect against the type of harm defendant has caused, without excuse, that violation is negligence per se.

a. Martin v. Herzog (Court of Appeals of NY, 1920)i. Plaintiff and her husband were driving in buggy and struck by defendant’s car.

Both thrown; husband killed. Car coming around curve. Plaintiff charges driver with negligence in not staying to right-hand side of highway. Defendant sez that plaintiff’s husband negligent because was not using lights. Defendant not going too fast; nothing wrong with car.

ii. There was a statute requiring lights. Not just evidence of negligence not having lights is negligence. However, only liable for damages if not having lights causes harm

Which in this case it can be inferred that it did. Violating this statute will likely cause harm

driving without lights causes accidents Sometimes violation of statute can in and of itself prove that the

violation caused harm because this was the specific harm that writers of statute had in

mind Prima facie–sufficient case of contributory negligence

b. Why should criminal statute or regulatory law be considered basis for liability in tort action?

i. Statutory interpretation Legislature knew that courts would use statutes in this way, so they

created them for this purpose.ii. Ordinarily prudent person will defer to what legislature has doneiii. Reasonable people don’t violate law

III. What are advantages of negligence per se?a. Creates certainty

i. Makes things more predictable for general publicii. Guidance for individuals, juries—Holmes

IV. When can statutes be considered invalid as standard of care?a. If they’re invalid based on federal/state constitutionsb. If they’re so obscure/outmoded as to make adoption as standard of care

inequitablec. If in violating a statute, one is likely to prevent rather than cause the harm which

the statute attempts to avoid.

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i. Tedla v. Ellman (Court of Appeals of NY, 1939) Plaintiff and her brother, John Bachek, were walking along a highway. It

was dark. They were hit by car; plaintiff injured; Bachek killed. Highway: 2 roadways separated by grass plot. No footpaths. Legal to walk there. 1933 statute mandates that pedestrians walking along highway should stay to left of center line; plaintiff and Bachek did not.

legislature could not have intended such an unsafe result (deaf man walking on side of road with heavy traffic)

statute may further cause of safety in ordinary circumstances, but may be disastrous in emergencies

people should do what is reasonable even if what they’re doing violates law

distinguish between two different kinds of statutes Some prescribe particular standard of care This just modifies common-law rule

Which involved an exception Are we better off with general rules (à la Martin v. Herzog—world too

complex for ad hoc decision-making) or with individualized ad hoc determinations (world will be safer if people use judgment to do what’s best in situation—situation ethics)?

Central division in all of law (not just torts)d. One may avoid conclusion of per se negligence in the violation of a statute if the

violation is excusable.i. Combs vs. Los Angeles Ry. Corp. (Supreme Court Court of California, in

Bank; 1947) Plaintiff got on car without noticing how crowded it was. Was last person

to board; was trying to get into car but still on step as car approached next stop. Streetcar crashed into Joseph Commodore’s auto. Steps torn from body of car; plaintiff thrown into street. He violated part of city code saying that you can’t ride on steps of streetcars.

3 approaches to unexcused violation of statute: majority: negligence per se substantial minority: evidence of negligence to be weighed by jury other minority: rebuttable presumption

In this case: can rebut if behavior excusable/justifiable/what you’d expect from person of ordinary prudence

Excuses impossibility is an excuse no matter jurisdiction And so is emergency

V. Other types of laws as bases for negligence per sea. Municipal ordinances

i. Most jurisdictions: yesii. Others: just evidence

b. Administrative regulationsi. Many courts: yes for federal and state

H. Conduct more egregious than negligence (willful, wanton, or reckless)

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I. What’s willful/wanton/reckless?a. Willful: obviousb. Recklessness involves an intentional or unreasonable disregard of a risk that

presents a high degree of probability that substantial harm will result to another.

i. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run the risk or of his failure to reasonable recognize it.

Sandler v. Commonwealth (Supreme Judicial Court of Massachusetts, 1995)

P falls off bike in tunnel caused by uncovered storm drain and unlit tunnel, vandals had broken the lights and stolen the drain cover. Tunnel had been unlit for 13 years and it sometimes flooded, but court ruled standard not met.

Defendant clearly negligent But have sovereign immunity

So have to prove recklessness in order to recover Reckless failure to act = intentional/unreasonable disregard of risk

presenting high probability that substantial harm to another will result

Risk must be known/reasonably apparent Harm must be probably consequence of defendant’s choosing to

take risk or failure reasonably to recognize it Defendant knew chronically unlit tunnel with missing drain covers

caused risk of harm Defendant didn’t respond reasonably to knowledge r/e danger Still, risk of injury doesn’t meet standard for recklessness

ii. Ordinary negligence ≠ reckless/willful/wanton conduct Not knowledge with substantial certainty

iii. Can be proved by both subjective and objective knowledge Subjective:

Defendant knows of substantial risk and chooses to ignore it. Also if defendant has knowledge of facts that would make danger

obvious to anyone in that situation, sufficient Objective

person knew risk even though direct proof lacking defendant, for fear of what might be learned, refused to consider

implications of facts reckless indifference to risk

actor’s denial of actual knowledge of danger, while sincere, is still disturbing

II. Why try to prove “Willful, Wanton, Reckless” (especially if negligence is a slam dunk)?

a. Triggers punitive damagesb. Affects who can be sued

i. government can only be sued for what they consent to

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has to be reckless (Sandler)ii. employee can sue employer if they can show reckless conduct

can’t sue employer for common-law negligence because of worker’s compiii. trespasser can recover when they show injury to be recklessiv. good Samaritan (i.e. voluntarily helps out) can be liable only for reckless

conduct Good Samaritan Statutes prevent suing of healthcare professional who

stops to help someonev. child can sue parent for their reckless conductvi. judgments from claim from willful/malicious conduct may not be

dischargeable in bankruptcyc. plaintiff’s contributory negligence doesn’t preclude recovery if P shows D was

reckless I. res ipsa loquitur

I. in some cases, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case

II. Function of res ipsa loquitur is to aid P in proving elements of a negligence case by circumstantial evidence

a. Procedural impact of res ipsa loquituri. Creates permissible inference of negligence

Majority of courts do this Jury may find negligence if there’s no other evidence, but they don’t have

to Neither plaintiff nor defendant entitled to directed verdict defendant can rebut presumption through evidence Sullivan v. Crabtree (Court of Appeals of Tennessee, 1953)

Decedent was guest in tractor-trailor that overturned. Was daytime; conditions dry/clear. Defendant testified that there was loose gravel on road, and pavement on right broken a little. Defendant lost control of truck; truck swerved to left, went over shoulder and down embankment.

Plaintiff can’t prove facts showing negligence Going off road doesn’t necessarily mean negligence

res ipsa loquitur not rule but appraisal based on value of circumstantial evidence

When car runs off road without obvious cause and results in harm, driver’s negligence is normal inference.

Another fact(s) may give explanation, take case out of realm of res ipsa loquitur

Facts of this case brought it within res ipsa loquitur Type of accident that usually doesn’t occur without negligence Cause was within driver’s control, or at least resulted from his loss

of controlii. creates a presumption of negligence

Ybarra v. Spangard (Supreme Court of California, 1944)

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Plaintiff consulted Tilley, who diagnosed appendicitis; arranged for Spangard to do appendectomy at hospital owned/managed by Swift. While on operating table, Reser laid him back against 2 hard objects at top of shoulders. Previously, no pain in/injury to right arm or shoulder, but after waking up from operation had sharp pain halfway between neck and point of right shoulder. Pain spread to lower arm. Couldn’t rotate or lift arm; muscles around shoulder paralyzed and atrophied.

Defendants must prove they were not negligent because they had control over instrumentalities

When plaintiff receives unusual injuries while unconscious, all defendants who had any control over plaintiff’s body or instrumentalities must counter inference of negligence.

Basically wipes out requirement for exclusive control it’s enough that patient can show injury resulting from external

force while zie was unconscious Number/relationship of defendants doesn’t determine whether res ipsa

loquitur applies. functions like strict liability, even though it’s technically negligence

claim using res ipsa loquitur Policy justifications

No way for plaintiff to know who did what So put burden of proof on people who do know

Concurrent control of instrumentality They had control at the same time; they should all be liable.

Most important: without this presumption, plaintiff would never be able to recover.

Medical personnel, not unconscious patient, in best position to prevent losses that occur during surgery.

They’re insured: can spread loss of damages. They owe patient high degree of care Without this, you’d have to go to strict liability in order for

plaintiff to ever be able to recover. This at least allows defendant to rebut presumption of

negligence. if defendant does nothing (offers no evidence of nonnegligence), court

should direct verdict for plaintiff if defendant does present evidence of nonnegligence, it’s up to the jury shift in burden of production to defendant

have to produce evidence in order to avoid directed verdict burden of persuasion still with plaintiff

iii. burden of production and burden of persuasion shifted to defendant burden of production: if defendant doesn’t produce any evidence, plaintiff

wins burden of persuasion: even if defendant produces evidence, still up to jury

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Traditionally, plaintiff had to produce preponderance of evidence to convince jury.

This: if res ipsa loquitur invoked, defendant has to produce preponderance of evidence

If jury undecided/it’s a tie, must find for plaintiff. This is really unusual (most jurisdictions don’t follow this).

III. Restatement (Second) elements of res ipsa loquitura. ETP: ET, Phone

i. Exclusive control, Type of accident, Plaintiff not contributorily negligentb. Accident must be of a kind which ordinarily doesn’t occur in the absence of

someone’s negligencec. Accident must be caused by an agency/instrumentality within the exclusive

control of Di. This element’s purpose: ensure that the injury was not caused by a third partyii. Exclusivity requirement is not negated even when D shares responsibility over

the instrumentality with another, if another has physical control over instrumentality, or if cause not clear

There are times when a D has a nondelegable duty, which keeps defendant from shifting by contract its responsibility for keeping an area used by the public in a safe condition

Colmenares Vivas v. Sun Alliance Insurance Company (US Court of Appeals for the First Circuit, 1986)

Plaintiffs Dilia and Jose were on escalator at airport. Handrail stopped moving but steps kept going. Dilia lost balance; Jose grabbed her and kept her from falling, but lost balance and fell down stairs. Plaintiffs file suit against Sun Alliance Insurance Company (airport’s insurer). Sun Alliance sued Westinghouse Electric Corporation since they were responsible for maintenance of escalators. No evidence of negligence.

escalator handrail probably wouldn’t stop while escalator moving unless someone was negligent

Westinghouse maintained escalator most courts don’t require that control literally be exclusive Exclusivity requirement shouldn't be construed so narrowly as

to take from jury ability to infer that defendant negligent when defendant responsible for instrumentality, even if someone else also responsible

General tort law policy not to let people contractually shirk responsibility for maintaining safety in areas used by public

Accident not due to voluntary act of plaintiffsiii. Exclusive-control requirement hasn’t fared well under modern tort law

Esp. in product-liability cases, things often go through several phases of control

d. Accident must not have been due to any voluntary action on the part of P IV. Restatement (Third) requirements for res ipsa loquitur: It may be inferred that the

defendant has been negligent when the accident causing the plaintiff’s physical

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harm is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant member.

7. CausationA. Generally

I. In tort law, connects plaintiff’s injury with defendant’s tortious harmII. proximate cause

a. Sometimes referred to generally as “proximate cause” or “legal cause”b. Sometimes “proximate cause” used as category term

i. Which may include… Cause in fact Proximate causation

how far does liability extend? Factors

Proximity Scope of duty Causal link

c. Plaintiff has burden of proofi. Before can get to jury, has to introduce direct or circumstantial evidence that

shows that injury resulted more probably than not from defendant s act/neglect

III. Not linked to negligence necessarilyIV. Constant in almost every area of law

B. Cause in factI. basic rule is that plaintiff must show that but for defendant’s negligent act/tortious

conduct, plaintiff would not have been harmed.a. usual test of cause in fact

II. What is test of strength of connection?a. Harm must be natural result of defendant’s tortious conduct

i. OLD R00L: Must exclude all other causes. Wolf v. Kaufmann (Supreme Court of New York, Appellate Division;

1929) Decedent found injured/unconscious at bottom of stairs in premises

owned by defendants. Hallway unlit, in violation of Tenement House Law.

Court: No proof that lack of light caused accident. Basic test of cause: Can it be said that but for cause, result would

not have occurred? So, can it be said that but for lack of light, decedent’s death

would not have occurred? Which seems inconsistent with Martin v. Herzog: decedent in class

of people statute is supposed to protect; this is the kind of injury Tenement House Law is supposed to prevent.

ii. NOO R00L: Just has to be natural and probable result Reynolds v. Texas & Pac. R. Co. (Supreme Court of Louisiana, 1885)

Plaintiff and family were at RR station, train running late. Train arrived at 2 a.m.; passengers told to “hurry up” and get on.

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Plaintiff’s wife came out of brightly lit waiting room and onto unlit outside steps; fell down past narrow platform at bottom and onto slope beyond.

When defendant’s negligence greatly increases chances of accident and is of character naturally leading to occurrence of accidents, mere possibility that it might have happened without negligence not enough to break chain of cause-and-effect between negligence and injury.

Civil proof requires preponderance of evidence Presence of other possible causes doesn’t preclude finding for plaintiff

III. is liability owed to particular plaintiff?a. Zone of reasonable apprehension (Cardozo, Palsgraf)b. Natural and continuous sequence

IV. Is liability owed by particular type of harm?a. Foreseeabilityb. Test more like Andrews in Palsgraf

V. Causal linka. Causal link: whether negligence increases likelihood of injuryb. but for cause and causal link both needed for cause-in-fact

i. if the accident would not have occurred without the actor’s violation of duty, but the actor’s violation didn’t generally/empirically increase the chance of the accident occurring, then causation not proven

Berry v. Sugar Notch Borough (Supreme Court of Pennsylvania, 1899) Plaintiff running train car during windstorm; passed under large

chestnut tree; it got blown down, crushing car’s roof and injuring plaintiff. Plaintiff’s car going faster than speed limit.

Can’t be said that speed cause or contributing factor to accident. Car was right underneath it; couldn’t have prevented accident by

slowing down, having more time to stop, etc. Chance of tree falling on him same no matter what speed he was

going. Independent variables.

c. Most courts don’t use thisd. Unless fact pattern brings it up, don’t talk about it

i. If you see it, you’ll knowC. Foreseeability, duty, scope of risk, and proximity

I. proximate cause = limitation on liabilitya. On exam: divide type of proximate cause questions

i. Does scope of liability apply to this type of plaintiff?ii. Does scope of liability apply to this type of harm?

b. Even if defendant is negligent (the but-for cause or causal link), must be limits on scope of defendant’s liability

i. Avoiding liability out of proportion with faultc. hard to have proximate cause limitation and still have instrumental policies—cost-

benefit analysis, loss distribution, etc.—in tort lawi. Limits loss distribution

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more defendants = more people who can bear costs of loss and if everybody is held responsible, then everybody will be held

responsible for their actions on the inverse, people don’t have to consider remote but present

consequences of actionsd. Last-wrongdoer rule: there can be only one proximate cause of an event

i. Should be the one nearest in time to eventii. Never widely supported

But it does still pop upII. Manner/extent of harm

a. Restatement (Second):i. If conduct is substantial factor in harming somebody, fact that person didn't

foresee or should have foreseen extent/manner of harm doesn’t preclude liability

ii. If afterwards, looking back from harm to person’s negligence, court thinks it’s highly extraordinary that negligence could have caused harm, then may be held not liable

b. An actor is still liable for negligence even if the negligence does not cause the type of damage that would be expected.

i. Basically, the direct opposite of Wagon Mound 1!ii. In Re Polemis and Furness, Withy & Co. Ltd. (Court of Appeal, 1921)

Owners chartered ship to charterers. Owners to provide/pay for provisions/wages of crew; charterers to pay for everything else. Ship loaded at Nantes bound for Casablanca. Leak during offloading in Casablanca; fire; ship destroyed.

In order to have liability, some damage must be reasonably foreseeable If no foreseeable harm, no negligence

Negligence = reasonable person would foresee that act would cause damage

If so, the fact that the resulting damage isn’t the type expected is immaterial

As long as act actually caused damageiii. Most American courts follow this

c. Defendant is liable only for consequences of negligence which were reasonably foreseeable at the time.

i. Basically, the direct opposite of In Re Polemis!ii. Overseas Tankship (UK) Ltd. v. Mort’s Dock & Engineering Co Ltd. aka

Wagon Mound I (Privy Council, 1961) Defendant chartered tankship Wagon Mound; servants allowed oil to spill

over harbor in Sydney, Australia. Foreseeable that oil might foul plaintiff’s drydock. Oil on water caught on fire; plaintiff s property burned.

Essential factor for determining liability: whether reasonable man would have foreseen damage

Shouldn’t depend on damage being “direct”/”natural” consequence

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dock owner was foreseeable plaintiff, but damage (oil catching on fire and burning dock) not foreseeable harm

d. Aaaaaaand…let’s try this one more time. If a reasonable person would have foreseen the risk, even if the risk was remote, then defendant is liable for damages due to negligence in not trying to prevent it.

i. Overseas Tankship (UK) Ltd. v. The Miller Steamship Co. Pty. aka Wagon Mound II (Privy Council, 1967)

Same accident/set of facts as Wagon Mound 1. Defendant same, but this time plaintiff is owner of ships docked at the wharf that burned.

Difficult but not impossible to burn oil on water. risk of fire viewed as foreseeable by reasonable man acting as ship

engineer But infinitesimal chance doesn’t make it OK to ignore risk

Must take precautions unless costs, etc., makes them unfeasible Which was not the case here

No justification for dumping oil in Sydney Harbor Doesn’t overrule Wagon Mound I or take issue with Cardozo’s logic from

Palsgraf But sez that foreseeability manipulable concept

So result comes close to idea that defendant responsible for all direct consequences

e. the extent/amount of damage NEED NEVER be foreseeable.i. “thin-skull” / “shabby millionaire” ruleii. Only the type of risk needs to be foreseeable.iii. Pretty much universally used in all courts

III. Unforeseeable plaintiffa. Why is duty vs. proximate cause important?

i. Duty determined by a judge, but proximate cause determined by juryb. Defendant’s act must be directly negligent to plaintiff in order for liability to

apply.i. Palsgraf v. Long Island R.R. Co. (Court of Appeals of New York, 1928)

Plaintiff waiting for train. Train going elsewhere stops at station. Dude carrying package runs for it. Train already moving. Dude makes it, but looks like he’s about to fall. Guard on car reaches forward to help him in; guard on platform pushes dude from behind. Package falls onto track. Has fireworks inside. BOOM! Explosion throws down some scales at other end of platform, striking and injuring plaintiff.

Things Palsgraf held to stand for: Duty (Cardozo) Policy/fairness/practicality (Andrews)

Opinion (Cardozo): Idea is duty, NOT foreseeability! Majority rule in US courts Corrective justice opinion

Tort law not social engineering. It’s person v. person

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“Negligence in the air” will not do. Defendant must owe duty of care to injured person.

Risk reasonably to be perceived defines duty to be obeyed Duty of care owed to foreseeable plaintiff when harm within zone of

reasonable apprehension. Dissent (Andrews):

Idea is policy/fairness, not direct vs. indirect nature of harm! Restatement (Third) takes this opinion

Instrumentalist position Consistent with Learned Hand formula And with Calabresian principles of loss distribution and

minimization Fundamental disagreement with Cardozo r/e duty of care Negligence

act/omission that unreasonably does/may affect others’ rights relationship between actor and those potentially harmed, but also

between actor and those actually injured act itself, not actor’s intent, that matters

if there is unreasonable act and right that may be affected, there’s negligence

If there is negligence, actor is responsible if harm directly results

Due care is duty imposed on all of us to protect society from unreasonable danger

Not relational Can’t say as matter of law that plaintiff’s injuries not proximate result

of negligence Foreseeability just one of several factors

Even jurisdictional split between Cardozo and Andrews

Graphic summary of above:Plaintiff Type of Risk Extent of Damages

The unforeseeability of _____ precludes liability.

Cardozo in Palsgraf Wagon Mound I n/a

The unforeseeability of ____ does not preclude liability.

Andrew in Palsgraf In re Polemis Thin-skull/shabby millionaire rule

D. Substantial factorI. Test of cause in fact

a. If but for test doesn’t work (multiple/indeterminate tortfeasors)II. Test of proximate cause

a. If it’s not strong enough to be cause, it can still be substantial factor

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III. the Plaintiff must generally showa. that the defendant’s negligent act or omission was a but for cause of the injuryb. that the negligence was causally linked to the harmc. that the defendant’s negligent act or omission was proximate to the resulting

injuryIV. used to show that the injury would not have occurred without the action

E. Intervening and superseding causesI. Most common set of problems arising under proximate cause analysis

a. Often person whose actions are closest in time to injury is judgment-proofb. How to tell whether something that happens after defendant’s original act and

contributes to plaintiff’s harm breaks chain of causation?II. Intervening cause: cause that contributes to plaintiff’s injury after defendant’s act or

omission has been completeda. Foreseeable

i. Medical malpractice considered foreseeable If tortfeasor injures somebody and there’s subsequent medical

malpractice, original tortfeasor held liable for entire thing When tortfeasor’s negligence sets of chain of events that renders

plaintiff subject to malpractice at two hospitals, malpractice at both is within scope of risk and original tortfeasor can be held liable for entire thing.

As long as injuries indivisible. Second tortfeasor is liable for 3rd tortfeasor only if 2nd’s malpractice was a

legal cause of injuries suffered at hands of the 3rd tortfeasor Modave v. Long Island Jewish Medical Center (US Court of Appeals

for the Second Circuit, 1974) Plaintiff injured in car accident, taken to LIJ. Alleges that she was

subjected to malpractice. LIJ didn’t have room for plaintiff, so she was transferred to county hospital, Meadowbrook, whom she claims further negligently aggravated injury.

wrongdoer liable for ultimate result, even if negligence of intermediary may have increased the damage

Where third party inflicted original injury, first hospital, even if negligent, isn’t necessarily liable for subsequent malpractice

Only if first hospital’s malpractice was legal cause of injury suffered at second hospital

Plaintiff didn’t show sufficient causal connection Where malpractice at first hospital creates injury not inherent in

original, and this causes second hospital to take actions that result in further harm, possible to hold first hospital liable

b. Can be any cause that happens after defendant’s acti. Can be tortious act of another defendant

c. If it doesn’t break the chain of causation, both the original and intervening defendants are held jointly and severally liable.

i. Indivisible injury Defendants can sue each other for contribution

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III. Superseding cause: an intervening cause that breaks the chain of causation.a. Unforeseeable

i. Intentional torts are unforeseeable and therefore superseding. Original tortfeasor won’t be held liable for subsequent harm

caused/exacerbated by somebody who commits intentional tort or crime.

Liney v. Chestnut Motors, Inc. (Supreme Court of Pennsylvania, 1966) Defendant owns garage/auto dealer in area with high number of

auto thefts. Employees left customer’s car double-parked outside with key in ignition for 3 hours. Stolen by somebody who drove it recklessly, striking plaintiff and injuring her.

Defendant couldn’t have anticipated that this carelessness of employees would result in harm suffered.

Didn’t violate any duty to plaintiff So plaintiff not harmed by defendant’s negligence

Even if defendant should have anticipated likelihood of theft, nothing to put defendant on notice that thief would be incompetent/careless.

Nowadays jurisdictions split r/e following this rule Major exception to above: When the intervening, intentional act of

another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.

Bell v. Board of Education (Court of Appeals of New York, 1997) Plaintiff’s class went to park. Teacher gave permission for plaintiff

and friends to leave to get pizza. Before returning to school, teacher took head count, discovered plaintiff missing. Plaintiff in pizzeria when told class had left. Went to park, they weren’t there; she headed home by herself. Encountered 3 boys. Raped and sodomized her. Perps arrested and pled guilty to first-degree rape.

third-party crimes may be reasonably foreseeable consequence of circumstances created by defendant

when somebody’s job is to prevent criminal conduct, occurrence of criminal conduct doesn’t break chain of causation

ii. The negligent defendant whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing the harm is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of risk created by the defendant’s negligence.

Doe v. Manheimer (Supreme Court of Connecticut, 1989) Plaintiff is meter reader for city. Saw man on other side of street.

Thought he needed directions, crossed street to help. He took gun from bag and forced her through vacant lot onto defendant’s property. Area has building on one side, retaining wall in back,

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view blocked by bushes and tall grass. Assailant raped plaintiff, then fled; has never been caught.

Negligent conduct as cause in fact doesn’t automatically = substantial factor

Harm must be of same “general type” as foreseeable risk created by defendant’s negligence

In this case, e.g., tripping over rubble Also, shielding could have been provided by something validly

placed there defendant owes no duty to plaintiff

Stranger Abduction didn’t occur on his property

Doesn’t have duty to protect those on public sidewalks and streets

Where intervening act intentional: third person assumed control of situation

Responsibility shifted to hir But some intentional acts may be foreseeable and thus within

scope of created riskb. Original defendant is no longer held liablec. Subset of intervening caused. Legal conclusione. If second cause is tortious on somebody else’s part, that person can be held liable.

F. Multiple tortfeasorsI. If the actions of two defendants are the cause of an indivisible injury, both defendants

are liable for damages, even if they did not act in concert.a. Corey v. Havener (Supreme Judicial Court of Massachusetts, 1902)

i. Plaintiff deaf. Was driving slowly in wagon. Defendants passed plaintiff on each side: going fast on motor tricycles making a lot of noise and emitting smoke/steam. Plaintiff’s horse spooked, but he got it back under control; then he passed defendants, at which point horse shied and he lost control. Wagon wheel hit another wagon; plaintiff and his wagon both harmed. Neither plaintiff nor witnesses able to say which defendant/vehicle caused horse to spook.

ii. Jury: both defendants committed wrongdoing. Doesn’t matter that they didn’t conspire to do it

Or that not possible to tell what percent committed by eachiii. If more than one person contributes to injury, can be sued either separately or

jointly.II. Indeterminate tortfeasors

a. When two defendants are negligent and a third party is injured, the actions of both defendants are considered the proximate cause of the injuries unless one defendant is able to show that hir actions did not cause the harm.

i. Summers v. Tice (Supreme Court of California, in Bank; 1948) Plaintiff and defendants were hunting quail. Defendants were 75 yards

away but could see where plaintiff was. Quail flew 10 feet in air

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between plaintiff and defendants. Both defendants fired; one shot hit plaintiff.

Burden of proof should be shifted to defendants Both negligent

So they should have to absolve themselves if possible Cites Ybarra v. Spangard

Plaintiff has given evidence leading to inference of negligence which was proximate cause of injury

up to defendants to explain cause of injury In this case: can’t prove that injuries would have occurred but for actions

of each individual defendant. Under traditional but for test, plaintiff wouldn’t recover here

b. Market-share liabilityi. NEW THEORY OF CAUSATION

Calabresi and instrumentalists: causation doesn’t matter Doesn’t matter if entities held liable are not those that caused harm to

plaintiffii. Each defendant manufacturer is liable for the proportion of damages

corresponding to the market sales of the harmful product. Sindell v. Abbott Laboratories (Supreme Court of California, 1980)

class action lawsuit, kids damaged by the drug DES which their mothers took during pregnancy, couldn’t identify whose drug damaged but the formula of each manufacturer was nearly identical.

When you’ve got innocent plaintiff and negligent defendants, defendants should bear cost of injury

Extension of Summers v. Tice In both, plaintiff not at fault for not providing evidence of

causation Loss minimization

Broader goal of product safety Manufacturer in best position to discover/guard against defects and

warn of harmful effects Holding them liable will encourage them to do so

Loss distribution: Defendants better able to bear cost of injury Following factors must be present for recovery:

all the named defendants are potential tortfeasors fungible product (identical in harm and defect) P through no fault of her own can’t identify which D caused injury. substantially all of the manufacturers that created the defective

products during relevant time period are named as defendantsiii. Determination of market shares for various defendants: one of the most

difficult parts of market-share liability cases Skipworth v. Lead Industries Association, Inc. (Supreme Court of

Pennsylvania, 1997)

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Plaintiff born 9/18/1988. Hospitalized 3 times between 9/10/1990 and 5/8/1991 for lead poisoning; outpatient treatment 8/1991 and 6/1992. Resided in same house the entire time; building built ca. 1870. Testing revealed lead paint in multiple places around home.

lead paint/pigment not fungible product differing formula = differing bioavailability of lead

ingesting one kind of paint does not necessarily = ingesting another

impossible to determine market shares 100+ years since building of house until end of production of lead

paint market has changed a lot—companies have left, started up

can’t get all manufacturers in front of court almost certain that entities not producing lead paint that injured

plaintiff would be held liableiv. Arguments for market-share liability

Defendants, over range of cases, will pay damages corresponding to their liability

Loss distribution: these companies better able to pay than plaintiffs are Loss minimization: incentives for companies to test, to warn, not market

beyond FDA authorization Corrective justice

They were negligent and caused harm Plaintiff is innocent

v. Usage of market-share liability 17–18 states recognize market-share liability for DES cases total of 11 other types of cases for which market-share liability has

succeeded Skipworth has been controlling here

Impossible to determine market share8. Plaintiff’s conduct and related issues

A. Contributory negligenceI. P is contributorily negligent when…

a. plaintiff doesn’t exercise the amount of care which he should for his own protection

i. P is aware of the danger and unreasonably proceeds in the face of it Exception: Ordinarily not contributory negligence to continue to work

when worker becomes aware of danger unless collective bargaining agreement or custom of trade demands the worker to stop/report it

Gyerman v. United States Lines Co. (Supreme Court of California, In Bank; 1972)

P is longshoreman, works in warehouse moving sacks of fishmeal, noticed stacks were unusually arranged, complained to D’s clerk but not to plaintiff’s own supervisor. P continues working and moves sacks, they fall, he’s injured. Found contributory

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negligence; defendant negligent also in violating Labor Law (unsafe working conditions)

In unsafe conditions, plaintiff may exercise less care than normally required to

Has to give more attention to work Several factors to determine contributory negligence

Worker may not be able to quit task when danger sensed Might not know who to complain to May be encouraged to work under unsafe conditions

In this case: we have contractual duty and knowledge of custom to determine standard of care

Custom = evidentiary record doesn’t establish that plaintiff’s failure to report caused

falling sacks (and hence injury)ii. P unreasonably fails to discover a riskiii. required to exercise only that amount of care which ordinary prudent person in

same circumstance wouldb. plaintiff’s conduct is a legally contributing cause cooperating with D’s negligence

in bringing on P’s injuryi. per Restatement (Second), plaintiff’s negligence legal contributing cause of

harm IFF… it’s a substantial factor in bringing about harm no rule restricts plaintiff’s responsibility

II. policy behind contributory negligencea. Plaintiff’s conduct is intervening cause

i. But intervening cause is considered superseding cause only if it’s unforeseeable

b. Discourage accidents: if P can’t recover, then he won’t risk the actc. Prevent courts from aiding people who are at faultd. Penalize P for being careless

i. Though defendant may be more culpablee. Protect individual freedoms: businesses, entrepreneursf. Screens cases

i. Decreases # of cases filed, cases that go to trial, cases that go to juryii. but may unfairly reduce the number of claims

III. Burden of proof on D to prove by preponderance of evidence since it’s his affirmative defense

IV. Last clear chance: if defendant had last clear chance to avoid accident, plaintiff can recover even under contributory negligence doctrine

V. contributory negligence is not a defense to:a. Intentional tortsb. Defendant is willful, wanton, or reckless

i. has to be extreme gross negligenceVI. only 5 states still use pure contributory negligence doctrine

a. MD is one!B. Comparative fault

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I. Comparative fault systems: more cases filed, more cases survive summary judgment, more cases go to jury

II. Before you get to comparative fault, two things must be true.a. Defendant must be found negligent

i. Defendant’s negligence must be cause in fact and proximate cause of plaintiff’s injury

b. Plaintiff must be found to be contributorily negligenti. Plaintiff’s contributory negligence must also be cause in fact and proximate

cause of injuriesIII. Types of comparative fault systems

a. “Pure” form: liability apportioned in direct proportion to faulti. Li v. Yellow Cab of California (Supreme Court of California, In Bank; 1975)

P making left across 3 lanes, D was speeding, both negligent, verdict for D at trial court. Supreme Court overrules contributory negligence.

Assumption of risk In CA, this defense overlaps that for contributory negligence Is actually composed of 2 separate defenses

Which may not have anything to do with contributory negligence Merge assumption-of-risk defense into general system of assessing

liability proportionally to fault in cases where assumption of risk is just variant of contributory negligence

What about willful misconduct? contributory negligence ≠ defense to willful misconduct claim

ii. states adopting via judicial decision (~12) go for pure comparative fault as do several federal statutes

iii. Under this system, possible for plaintiff and defendant to recover against each other

Plaintiff recovers against defendant based on original suit Defendant recovers on counterclaim

b. Modified formsi. These are what majority of states have.

Usually the result of legislative comparative faultii. “not greater than” (“less than or equal to”)

recovery reduced by percentage of fault attributable to plaintiff as long as plaintiff’s fault not greater than defendant’s

if plaintiff’s fault greater than defendant’s, plaintiff doesn’t recover states adopting through legislation tend to use this if 50/50 tie…

Juries will often split evenly if not able to come up with anything else Under this system, each party gets half

iii. “50 percent” (“not as great as”) system: apportionment based on fault up to the point at which plaintiff’s negligence equal to or greater than defendant’s

at that point, plaintiff can’t recover argument for: not morally right to let the person more at fault recover from

person less at fault

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argument against: maintains lottery aspect of contributory negligence just shifts it around

adopted by minority of legislative-decision states if 50/50 tie, plaintiff gets nothing

c. South Dakota: Plaintiff’s negligence must be “slight” compared to defendant’sd. Uniform Comparative Fault Act (1985)

i. consider nature of conduct of faulty parties Whether conduct inadvertent or not Magnitude of risk defendant’s superior or inferior capacities circumstances (i.e., was it an emergency?)

ii. extent of causal relation between conduct and damagesIV. Comparative fault and juries

a. Some jurisdictions make jury fill out interrogatories or special verdict formsi. show total damages for plaintiff and percentages of fault attributable to

everybody Makes it difficult for judge to grant motion not withstanding verdict or

motion for new trial Hard for judge to say that reasonably jury couldn’t have reached that

resultb. Other jurisdictions: Jury just has to return general verdictc. In “not greater than” and “not as great as” jurisdictions, should jury be told about

rules for plaintiff recovery?i. They may not know that 50/50 split goes for defendant

So they may think they split the damages for each party to recover evenly, but in “not as great as” jurisdictions, that’s not the effect

V. Hold plaintiff’s degree of fault up against each defendant’s individually or against all defendants combined together?

a. In “no greater than” and “not as great as” jurisdictions, this will make or break recovery

VI. How does “last clear chance” work under comparative fault?a. Kill it

i. don’t need it as palliative for contributory negligence anymoreii. gives windfall to plaintiff, contradicting entire point of comparative fault

systemiii. supported by Li and Restatement (Third)

b. keep it: if defendant had last clear chance to avoid harm, plaintiff’s conduct not proximate cause

VII. Problems with comparative faulta. Jury apportionment of faultb. Do courts themselves understand how to determine who pays what percentage?c. How to determine…

i. Causationii. Extent to which parties departed from reasonably prudent care

d. Possible to have situation where more culpable party recovers more moneyi. More negligent party is often injured the worst

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C. Plaintiff’s opportunity to minimize harmI. under comparative fault, if a P chooses not to use an available, simple safety device,

the jury may consider it to reduce damages given to plaintiff.a. Law v. Superior Court for the County of Maricopa (Supreme Court of Arizona,

1988)i. Cindy Law hit the Harders with her car. They were seriously injured. Harders

filed suit against Cindy and her parents. Laws moved to compel discovery of Harders’ use of seat belts.

ii. car accidents foreseeable everybody obligated to reasonably minimize foreseeable harm

iii. Under doctrine of avoidable consequences: plaintiff has a duty to use reasonable care to avoid aggravating injuries from an accident.

Nonuse of seat belt = failure to avoid foreseeable harm to selfiv. no windfall to tortfeasor

under comparative negligence, might pay less than they otherwise would, but not less than should

D. Assumption of riskI. Confusion as to whether they are talking about a true affirmative defense or whether

just negating D’s duty to PII. P assumes the risk of harm if he knows of the risk and voluntarily consents to take the

chanceIII. complete defense at common law

a. plaintiff recovers nothingIV. Contractual disclaimers

a. party can contract to disclaim liability for negligencei. Exceptions

intentional torts or willful/wanton/reckless acts gross disparity in bargaining power transaction of public interest as determined by Tunkl test

six factors business is suitable for public regulation party performs service of great importance to public party holds self out to perform service to any member of public party has superior bargaining power party uses a standardized adhesion contract person or property of purchaser is under control of seller

Seigneur court sez is more important to go by totality of circumstances, though.

Transactions more difficult to define but so important to the public good that an exculpatory clause would be patently offensive to entire community

ii. Seigneur v. National Fitness Institute, Inc. (Court of Special Appeals of Maryland, 2000)

woman joins health club, signs contract with exculpatory clause against any negligence claim. Hurts her shoulder, instructor tells her to

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continue and she does. P has to have surgery, P claims agreement wasn’t valid, court denies this claim: no recovery.

adhesion contract doesn’t violate the exception if it’s not an essential service there are other competitors/choices exculpatory language was prominently displayed

not transaction of public interest per Tunkl test per totality of circumstances

Defendant = private corporation No obligation/legal duty to accept plaintiff as member Can insist on whatever terms it wants

Plaintiff voluntarily applied for membership Agreed to terms

b. But must utilize unmistakable language.i. Gross v. Sweet (NY)

Plaintiff took parachute lessons from D and signed a release. P was injured. Because D did not express intent clearly and in unequivocal terms, was not free from liability for P’s injuries. The exculpatory clause did not contain any language releasing D from liability for any enhanced danger besides the normal danger in parachute jumping.

Plaintiff might not realize they were signing off on accidents that occur through defendant’s negligence, not just plaintiff’s own negligence or ordinary accidents

NY law frowns upon contracts intended to exculpate a party from the consequences of his own negligence

generally enforceable but subject to close judicial scrutiny unlike Seigneur (MD)

must also be conspicuous. c. Huge philosophical difference between Maryland and New York courts

i. Disagreement: do you trust the market to correct negligent behavior, or do you believe in the necessity of the tort system?

d. Alternate approach: Dalury v. S-K-I, Ltd.i. No disclaimersii. Businesses are best equipped to prevent negligenceiii. In this case, ski resorts hold themselves open to public

Become public areasV. Implied Primary Assumption of Risk (“No Duty” Cases)

a. There is no duty or violation of duty involved because P was naturally subjected to the inherent risks of something that is obvious or common knowledge

i. When one is a sports spectator/participant, you are naturally subjected to the inherent risks of the game (watching or playing)

Brown v. San Francisco (App. CA 1950) P goes to a baseball game, sits in seats that were not covered by

protective screen. Hit by a ball. Had been to one game prior and

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hadn’t been paying attention at the instant game. Ample screened seats. She sues for negligence, directed verdict for defendant.

Really a no-duty case, but often referred to as implied-consent No duty owed by defendant to plaintiff.

Stadium had to provide unscreened seats, but sitting in them or not was patron’s choice.

No further liability for stadium. Duty owned by proprietor is the same to all patrons Plaintiff’s specific lack of knowledge is irrelevant if inherent risk is a

matter of common knowledge Even if plaintiff had never seen the game played before, still no

duty. Owners assume that spectators know. Like Lorenzo v. Wirth

If injured while participating in athletic event, person has impliedly consented to injuries.

Even if rules of game violated (modestly), that’s not enough to undo consent.

b. Comparative negligence and assumption of the riski. When a P has reasonably encountered a known risk created by D, he should

not be barred from recovery. Blackburn v. Dorta (Supreme Court of Florida, 1977)

Court tries to make sense of doctrine of assumption of risk; winds up abolishing it.

Minority opinion among courts Assumption of risk can be subsumed by contributory negligence.

because if you unreasonably assume risk, you’re contributorily negligent

Master/employer not negligent if workplace is reasonably safe Will always be risks in workplace (or anywhere) that don’t

necessarily make defendant liable Employer doesn’t have duty to prevent reasonable risks

Under traditional assumption of the risk, a parent entering a burning house to save his child would be barred from recovery because he voluntarily assumed the risk.

The Court stated that this was unjust. reflects a trend towards abolishing assumption of risk

ii. most courts maintain a separate assumption of the risk defense iii. in comparative fault jurisdictions, if plaintiff voluntarily encounters known

risk, jury will typically assign large percentage of fault to them but not always (heroic acts, etc.) in about half of the comparative fault jurisdictions, assumption of the risk

is still separate defense 100% bar to recovery

other half treat it as something to be considered under comparative fault statutes

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9. Apportionment of liability among defendantsA. Big public-policy issue

I. Defendants tend to be people with resourcesa. no point in suing someone who can’t pay

II. Legislatures have dealt with this in a variety of ways state by state (40+ different ways)

a. Law is still developingB. Traditional doctrines of joint/several liability and contributory negligence

I. plaintiff can collect entire amount from one defendant or in some combo from alla. Can’t collect more than total award amount

i. Will probably pick defendant with most resourcesb. Defendant who has to pay more can’t sue another one to compensate

i. Courts not going to assess relative degrees of fault Courts not settling disagreements among wrongdoers

ii. Exceptions Indemnification

one party held liable for tort, believes that other party should have paid it. Can go after other party for entire amount.

Vicariously liable employer could sue employee Contractual

II. If plaintiff contributorily negligent, collects nothing.C. Uniform Contribution Among Tortfeasors Act

I. Most passed in mid-1970sII. Basic rule: where defendant paid more than its fair share of judgment, could sue other

defendants to collect anything in excess of its fair sharea. Most states: Shares usually determined based on relative degrees of fault of each

partyb. Some states divide it equally among parties (3 defendants, each pays ⅓)c. What if it’s split, but one defendant is indigent/judgment-proof?

i. Plaintiff still collects full amount Other defendant(s) get stuck with more than their “fair share”

III. What if one defendant settles?a. Assuming plaintiff wins at trial, remaining defendant(s) pay difference between

settlement amount and total award amounti. So plaintiff gets the full amount of her judgmentii. Defendant(s) from trial can’t sue the one(s) who settled

because otherwise defendant never off the hook after they settle and we don’t want to discourage people from settling

IV. what if there’s a codefendant beyond jurisdiction of court?a. Other defendant(s) pay

V. What if codefendant immune?a. Other defendant(s) pay

D. Comparative Fault and Joint/Several Liability with Negligent P and 2 or more Negligent Ds

I. Majority rule: plaintiff should be able to collect all her damages from the solvent/non-immune codefendant except those attributed to her fault

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a. Walt Disney World Co. v. Wood (FL)i. Plaintiff injured in Grand Prix Ride when she was rammed by her fiancé

(husband at time of trial). Sued Disney World. Court found: Plaintiff 14% at fault, P’s spouse (codefendant) 85% at fault, Disney 1% at

fault Plaintiff and spouse (codefendant) are married

can’t collect damages from spouse Joint/several liability is rule in FL at the time, so court enters judgment for

86% of $75K against Disney Disney is responsible for both defendants’ shares of fault

Even though P’s conduct was found to be 14 times more egregious than Disney’s and codefendant’s conduct 85 times more egregious than Disney’s

ii. Correct decision under the law but seems intuitively unfair

II. What should the rule of J+S Liability be After Comparative Fault? a. Old justifications of J+S Liability don’t apply now

i. P is not innocentii. Jury now engaged in determining faultiii. P still getting full compensation despite being negligent and necessary cause

of the injuryb. 3 main approaches

i. Joint/several liability Disney was correctly decided and should be the law Joint/several liability should survive the emergence of comparative fault encourages joinder of deep-pocket Ds

Good thing if you’re Calabresi (loss distribution) Bad if you’re Chamber of Commerce

ii. Proportionate (Several) Liability takes the approach that “stuff happens” each D is only liable for its proportionate share of fault

if P is injured by judgment-proof defendant, then it’s the same as if injured in random accident

problem: this approach ignores that Disney’s negligence was found by the jury to be necessary cause of P’s injury

Injury wouldn’t have happened but for Disney’s negligence Even if it was only 1%

iii. Percentage-Of-A-Percentage Approach Gifford’s favorite American Law Institute approach reallocate the unpaid part of damages between the paying defendant and

the plaintiff in Disney, out of $100K…

Disney pays 1% (their share of liability) then it pays 1/15 (1% Disney + 14% P) of insolvent codefendant’s

85%

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c. other approachesi. Joint and several for economic damages, proportionate for noneconomicii. Joint and several for small amounts, proportionate for large amounts

10. DamagesA. Wrongful death

I. At common law, until mid-nineteenth-century, when plaintiff died, plaintiff’s claims died.

a. So let’s say you’re injured, can’t work for five years, rack up lots of death, then you die. Your claims are still being litigated. That litigation dies when you do.

i. Which could be really disastrous if decedent was breadwinner.II. Around mid-nineteenth-century, most states passed wrongful-death and survival

actions.a. State by state, so they vary a lotb. Two kinds of claims

i. Survival actions Any claims decedent had at death survive death, can be brought by estate

ii. Wrongful death Losses experienced by survivors

Who counts as “survivor” varies by state statutes Close family members can recover for…

loss of income Amount decedent earned, minus living expenses, adjusted for

interest/inflation until projected date of retirement loss of companionship, parenting, etc. Household contributions (person mows lawn, keeps house, etc.) Funeral expenses

contributory negligence If decedent contributorily negligent (or in jurisdiction that still

recognizes assumption of risk), estate steps into decedent’s shoes they’re subject to defenses decedent would have been subjected to

if that person were defending hirself What if survivor is contributorily negligent?

Most courts: may reduce particular beneficiary’s claims, but it won’t reduce other survivors’

So if husband contributorily negligent in wife’s death, he may recover less, but the kids won’t

B. Pain and sufferingI. Plaintiff’s lawyers will usually multiply medical expenses by a certain factor

C. Punitive damagesI. also known as exemplary damagesII. Only for willful/wanton/reckless conduct or intentional torts

a. given when jury believes that compensatory damages not enough to deter defendant from engaging in such conduct in future

b. in contributory negligence states, even if plaintiff is contributorily negligence, can still recover with punitive damages

c. trespassers (who can’t sue for negligence/ordinary torts) can recover this way

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d. employees can also recover beyond workers' compensation if employer willful/wanton/reckless

III. Actually rare in tortsa. They tend to only show up only in intentional torts and commercial fraudb. Punitive damages more common in “bad faith” contract claims other

business/employment claimsIV. either party can introduce evidence of wealth or lack there of, but it is not required to

seek punitive damages.a. Kemezy v. Peters (US Court of Appeals for the Seventh Circuit, 1996)

i. P had not introduced evidence about D’s wealth. D states that no punitive damages can be granted unless P produces such evidence. Posner states that Ps do not have to present this; the reprehensibility of a person’s conduct is not mitigated by his not being a rich person, and Ps are never required to apologize for seeking damages that, if awarded, will precipitate D into bankruptcy.

ii. Defendant can make poverty plea, but it’s up to them to do itiii. Defendant can’t introduce evidence of plaintiff’s wealth.

Not the point.iv. No reasons for punitive damages have to do with defendant’s income/wealthv. forcing plaintiffs to give evidence r/e defendant’s wealth could encourage

seeking punitive damages against whoever would be likely to be able to pay them

even if not justifiedvi. would make discovery very intrusive

and defendant wouldn’t be able to objectV. Tort reform and punitive damages

a. Many states in late 1980s–1990s enacted legislation limiting punitive damages or making recovery more difficult

b. Corporations very concerned about themi. Why?

Punitive damage awards actually infrequent Typical amount is ~$30k But…

Can be hard to tell on an actuarial basis how much punitive damages will be

Fairly easy to predict compensatory damages (even for pain and suffering)

Which are also paid for by insurance companies And not all liability insurance policies will cover punitive

damages Some states have laws preventing insurance policies from

covering punitive damagesc. Frequent state legislative reform r/e punitive damages

i. caps in absolute dollar amountsii. caps based on ratios of punitive to compensatory damages

destroys purpose of punitive damages

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not big enough to be deterrentiii. significant percentage of punitive damage awards goes to state instead of to

plaintiff (Calabresi!)VI. US Supreme Court and punitive damages

a. 1989: started hearing constitutional challenges to themi. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc.: upheld

punitive damage award against argument that it violated excessive-fines prohibition in Eighth Amendment

b. 1996: struck down award in BMW of North America, Inc. v. Gorei. due process groundsii. tortious conduct: defendant didn’t notify purchaser of new luxury car that car

had been repainted to cover defects in finishiii. several factors

amount of award $2 million disparity of punitive damages to compensatory damages ($4000)

modest level of reprehensibility of defendant’s conduct Lack of judicial guidance given to jury r/e when and in what amount

punitive damages appropriatec. 2007: Philip Morris USA v. Williams

i. Total reversal of view of punitive damagesii. Deceased smoker’s estate sues tobacco company. Jury awards $821k in

compensatory damages, $79.5 million punitive damages. Trial court knocks down punitive damages to $32 million. Appellate court restores it. US Supreme Court eliminates it.

iii. Opinion An award intended to punish defendant for harming persons not before the

court would amount to a taking of property from defendant without due process.

Standardless dimension to litigation Arbitrariness Uncertainty Lack of notice

Evidence of harm to nonparties can show that defendant’s conduct posted risk of harm to general public

And that conduct reprehensible But jury can’t go any further than that

iv. Dissent (WASSUP J.P. STEVENS!) Why shouldn’t harm to persons not before court be taken into

consideration r/e sanctions for reprehensible conduct? Damages

Compensatory: measured by harm defendant caused plaintiff Awarding these as remedy for third-party harm might be taking

without due process Punitive: punishment for public harm

Not much difference between these and criminal sanctions

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The purpose is retribution and deterrencev. What does this mean at trial-court level?

Plaintiffs won’t be able to introduce evidence on punitive damage claim r/e how many other people harmed by defendant’s conduct

What total amount of compensatory damages would be if all these people came before court

VII. Calabresi: sovereign immunity from punitive damages doesn’t serve purpose behind them.

a. Ciraolo v. City of New York (US Court of Appeals for the Second Circuit, 2000)i. Woman sues NYC under federal civil rights law (42 USC § 1983). Claiming

compensatory and punitive damages stemming from illegal strip search.ii. punitive damages ensure that wrongdoer bears all costs of actions

even in case where compensatory damages are underassessed and thus conduct underdeterred

cost/benefit analysis! rational actor will undertake activity when benefits exceed costs

when other people pay part of costs, cost-benefit analysis distorted actor will have incentive to engage in conduct whose social

costs exceed benefitsiii. goal of tort system: ensure that defendants pay costs of conduct

compensatory damages not always sufficient esp. if injurer tries to conceal harm harm that affects many people but each to limited degree general given

inadequate weight if only compensatory damages assessed injured party may not bring suit

esp. if time/effort/stress of suit outweigh compensation and some people (esp. if poor) won’t/can’t sue even if injuries bad

iv. wrongdoer not going to be caught every time so charging them for more than value of individual harm necessary to

make conduct unprofitablev. “windfalls” may induce undesirable behavior from plaintiffs and lawyers

But will have deterrent effect no matter who they’re paid to but there’s no real reason why they should go to individual plaintiff

except relatively small amount to induce victims to undertake lawsuits pay into fund to remedy unredressed harm from defendant’s conduct

b. weirdly, Posner agrees with this.c. But US Supreme Court basically reversed in Phillip Morris USA v. Williams.

11. ImmunityA. affirmative defense

I. even if defendant’s conduct tortious and harmful to plaintiff, plaintiff couldn’t recover because of identity of defendant or relationship of plaintiff to defendant

B. Interspousal immunityI. origins in nineteenth century, earlier

a. legal notion that husband and wife single legal entityi. that was discarded by late nineteenth/early twentieth century, but interspousal

immunity continued

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II. traditional justificationsa. Lawsuit will create marital disharmonyb. Don’t want torts filed as companion to every divorce casec. Inviting collusive fraud

i. But unmarried people (friends, whatever) can do this tood. Usually the person is insured, so insurance company would be paying judgment

anywayIII. Modern status

a. Some jurisdictions have eliminated it across boardb. Some jurisdictions eliminated it for traffic accidents

i. Everybody has auto insurance, so litigation will be against insurance carrier, not spouse

c. Other jurisdictions: eliminated it only in cases of outrageous, intentional tortsi. MD and VA are among theseii. Some jurisdictions eliminate for some but not all intentional torts

d. Other jurisdictions: eliminated in traffic accidents and outrageous, intentional torts, but not for other torts

C. Parental immunity:I. Trend towards elimination/abrogation

a. But slower than with spousalb. Mainly in three different contexts

i. Traffic accidents Parents likely to be insured

ii. Outrageous, intentional torts Sexual abuse intentional killing of other parent

iii. Dual capacity i.e., parent who is doctor treats and commits malpractice

child can sue for malpracticeII. courts will not hold parents liable for negligence in core parenting activities

a. not liable for disciplining childreni. except in extreme/outrageous circumstancesii. child protective system kicks in here

otherwise, courts reluctant to intervene within familiesD. nonprofit/charitable institutions

I. not immune anymore (mostly)a. traditionally immune

i. reason: would divert funds from purposes for which funds had been contributed

would instead go to plaintiffs/lawyersII. but what about religiously run hospitals? Liable for malpractice?

a. Private hospitals areIII. This has been abrogated either totally or to some extent

a. Though many jurisdictions have caps on damagesi. Often liable only to extent that institutions carry liability insurance

Many (but not all) states require liability insurance

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Though it’s standard to have it Some states still waive damages past liability insurance even though

they don’t require itE. Governments (sovereign immunity)

I. State/federala. Opinion of the Justices (Supreme Court of New Hampshire, 1985)

i. Policy justifications for government immunity If we held governments liable, would take funds from other uses and give

them to plaintiffs/lawyers Would require tax increase Shouldn’t hold state liable for functions that only it can provide (police,

etc.) Would inhibit legislators and executive-branch officials from exercising

discretion—making policy choices If courts second-guess executive/legislative decisions, that’s violation

of separation of powers Ability to sue judiciary would impair functioning of courts and public

confidence in courtsii. Arguments against government immunity

Fundamental right to redress Historical justifications don’t work anymore Right have case heard in court

iii. Provisions Exercise of legislative discretion and ability of courts to give final

judgments and maintain confidence in judiciary would be impaired by exposure to liability

State immunized when exercising executive or planning function involving basic policy decision characterized by high degree of official judgment or discretion

Intentional torts: should only be immune if employee reasonably believed actions were lawful

Should be liable for torts where belief was unreasonable, though State’s tort liability is vicarious

So plaintiff has to prove that defendant lacked reasonable belief but also that actions were within scope of employment

Per-claimant and per-incident damage ceilings OKb. Tort claims acts

i. Post–New Deal: government’s role has grown Government does many functions that private industry traditionally did

ii. State and federal State acts vary a lot

Proposed New Hampshire act is fairly typicaliii. Immunity waived

Governments, government agencies, municipalities But under certain terms and conditions

Usually only certain kinds of functions

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NH: policy choices immune Separation-of-powers concerns

Recovery usually limited Special processes usually involved

Different from common law Always more restrictive to plaintiffs Usually shorter statute of limitations Claim often presented initially to administrative body, not

courts Intentional torts

Don’t want police officers constantly being sued NH: Liable only when acting on unreasonable beliefs

Limitation on damages Common to most tort claims acts Tradeoff between willingness to bankrupt government vs. giving

citizens redress against governmentII. Municipalities

a. Usually covered under state tort claims actsi. Same terms as stateii. Functions

Governmental functions Entitled to same sovereign immunity as state

Proprietary functions Ownership of public utilities, etc.

Same liability as private competitor Line between these often not clear

E.g., road maintenance Public roads/sidewalks: government function Roads/sidewalks in park: proprietary function

b. Federal suits against local/state governmentsi. 42 USC § 1983: substantive law basis for most federal suits against local and

state governments/officials to remedy violations of federal law Monell v. Department of Soc. Servs.: limited liability of municipalities

under 42 USC § 1983 to cases in which plaintiff’s injuries result of execution of government’s policy/custom

doesn’t include vicarious liability for officers’ acts plaintiff often doesn’t have redress against municipality of

officer/employee who caused harmii. Can be sued under federal civil rights law for violations of constitutional

rights But only if injuries result from execution of customary government

policy/function12. Liability of possessors of land / premises liability

A. Negligence standard deviates from “reasonably prudent person” standardB. Invitees vs. licensees

I. Invitees

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a. occupier owes duty to discover unreasonably dangerous conditions and protect invitees from them

b. Traditional view of invitee: visitor on premises for business purposes of defendanti. Survives in places

But gets stretchedc. Restatement (Second)

i. Public invitee: invited as member of public for purpose for which land open to public

ii. Business visitor: invited for purpose directly/indirectly connected with business dealings with possessor of lands

Invitation to perjury: encouraging plaintiffs to lie and say they were on land for business purposes?

d. Invitation: conduct justifying others in believing that possessor desire them to enter land

II. Licenseesa. duty to warn licensees of concealed dangers known to occupier or which occupier

has reason to know and aren’t likely to be discovered by licenseei. This is NOT reasonable duty to inspect

b. Restatement (Second): person privileged to enter/remain on land by virtue of possessor’s consent

c. Permission: conduct justifying others in believe that possessor is willing for them to enter if they choose

d. Social guests: typically held to be licenseese. Emergency personnel (fire, police, etc.): usually held as licensees

i. Show up at weird hoursii. Occupiers don’t have time to inspect

f. BUT meter readers, mail carriers, FedEx people, etc., generally considered invitees

i. They come at regular hoursii. Are there for business purposes

III. can be liability to both invitees and licensees for unreasonably dangerous conducta. but under different conditionsb. various implications/interpretations

i. differentiating criterion is invitationii. occupier requested visitor's presence vs. granting permissioniii. visit for visitor's benefit vs. mutual benefit of visitor and occupier

IV. When someone is present in a business building for business purposes, zie is owed duty of care as an invitee. When someone is present for hir own convenience, however, even with the owner’s tolerance, zie is at best a licensee and is owed no duty of care.

a. Brosnan v. Koufman (Supreme Judicial Court of Massachusetts, 1936)i. P entered D’s building to mail personal letter and was injured when the stairs

he was on collapsed. Building had corridor that many used as pass-through between two major roads; it had a cigar stand, a telephone booth, and a mailbox. P was not permitted to recover because he entered the premises for his own convenience: was licensee. P did not show that he was an

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invitee: did not show that the mailbox was intended for public use (no sign, no advantage to D). Therefore, D did not have a duty to inspect.

ii. People passing over private land for convenience, even with assent of owner, often held to be licensees

Unless construction/maintenance is such to cause people to believe that it’s a public street

when building used for business, visitors present for business purposes generally have implied entitlement to duty of due care

but if someone is there for convenience, is licensee at bestC. trespassers

I. A trespasser is owned no duty of care except in cases of willful or wanton negligence.a. Exception: “attractive nuisance”

i. a child who is a trespasser is owed a reasonable duty of care because the child did not appreciate he was a trespasser.

In some jurisdictions, a child under any circumstance is owed this duty. In other jurisdictions, there is an “allurement doctrine”

the attractive nuisance doctrine is applied if the child is “allured” to the property.

ii. BUT in a state without an “attractive nuisance” law, a child’s age does not exempt hir from trespasser status.

Osterman v. Peters (Court of Appeals of Maryland, 1971) Four-year-old falls into a neighbor’s pool and drowns. County Code

requires that private pools be fenced and have a self- closing gate. The parents claim negligence and negligence per se. However, P cannot recover because the child was a trespasser.

Even in case of statutory violation, plaintiff must have right, defendant must have duty r/e that right, and plaintiff’s injury must be caused by breach of duty

Trespasser haz no right except in case of willful injury Mere violation of statutee doesn’t give right

Violation only raises presumption of negligence in favor of plaintiff entitled to assert it

MD is only state without attractive-nuisance lawD. Trend towards eliminating common-law categories and declaring that all visitors’ right to

recover should be based on standard of reasonable care.I. Licensee/invitee distinction abolished in 25 states

a. But not MD!II. Though some maintain a separate distinction for trespassers.

a. Nelson v. Freeland (Supreme Court of North Carolina, 1998)i. Dude #1 came to Dude #2’s house to pick him up for business meeting. Dude

#2 left stick on porch; Dude #1 tripped over it. Sued.ii. Plaintiff could have been licensee or inviteeiii. Origins of trichotomy

nineteenth century: used to take power from jury judge could force jury to apply these rules instead of considering

whether owner acted reasonably in maintaining land

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created before negligence principles and reasonable-care standard in existence

iv. Juries have applied negligence principles in every other area of tort lawv. Using reasonable-care standard doesn’t make owner an insurer against every

injury on propertyvi. Trichotomy leads to irrational results

Nuances that change entrant’s status are undefinablevii. Using trichotomy to determine duty of care is contrary to modern social mores

and humanitarian values Person’s life not less worthy because zie is on land without permission or

with permission but without business purpose Gives landowner privilege of being careless

viii. Standard of reasonable care towards all lawful visitors Less confusing Jury’s attention focused on actual pertinent issue (owner behaved as

reasonable person?) Trespassers still in separate category

Unfair burden on landowner They have no reason to expect trespasser’s presence

13. Products liabilityA. intersection of tort law and commercial lawB. claims based on misrepresentation increasingly importantC. What’s a product?

I. Restatement (Third) §19a:a. tangible personal property distributed commercially for use or consumptionb. Other items (real property, electricity, etc.) are products when context of their

distribution and use is sufficiently analogous to distribution and use of tangible personal property

c. Excluded: human blood and tissue [per Restatement (Third)]i. Public policy in favor of assuring availability outweighs policy of providing

compensation for injuries resulting from useII. Raw materials can be subject to product-liability actionsIII. strict liability also applies to free samples or promotional productsIV. strict liability applies to lease of new or almost-new productV. results vary when seller provides injurious product as incidental part of another

transactiona. Ladder in you-pick orchard: yesb. Wineglass in restaurant: yesc. Shopping cart in store: no

VI. How about sales or service?a. Generally strict liability doesn’t applyb. But services and products often provided together in one transaction

i. General rule: courts apply strict liability when product used up or consumed Exception: doctors/hospitals rarely held to strict liability even if product

consumed during procedure

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D. Early common law: manufacturer or seller not liable to remote purchaser with whom zie isn’t in “privity of contract” for harm caused even by lack of care on part of manufacturer/seller

I. plaintiff could only recover under common law if could show negligence and privity or else warranty and privity

II. rationale: manufacturer/seller not under duty to remote purchaser—not in privity of contract—to exercise care

III.Winterbottom v. Wright (England, 1842)a. Driver of mail coach injured when it broke down. Sued defendant, who had

contract with post office to maintain coach.b. Defendant’s original duty of repair came from contract

i. Thus extended only to other party to contract (post office) Plaintiff never contracted with defendant, so couldn’t recover either in

contract or tortE. Development: could sue manufacturer when injury occurred from “inherently dangerous”

productI. “things which in their normal operation are implements of destruction”—Thomas v.

WinchesterII. duty comes from foreseeability

a. If you have inherently dangerous product, it’s foreseeable that someone will be injured

i. Foreseeability replaces privityIII. for some reason food always counted?!

F. No moar privity!I. If product is likely to cause harm when negligently made, and manufacturer knows

that people other than purchaser will be using it, then manufacturer is liable for injuries that it causes, even if there is no contractual privity between manufacturer and plaintiff.

a. Product doesn’t have to be “inherently dangerous,” though.i. Just dangerous if negligently made.

b. MacPherson v. Buick Motor Co. (Court of Appeals of NY, 1916)i. Buick sold car to retailer; plaintiff bought car from retailer. Wheel spokes

defective; car collapsed; plaintiff injured. Buick had purchased wheel from vendor, but could have discovered defect by reasonable inspection.

ii. Cardozo’s exception to privity example of exception swallowing the rule

because, if someone is suing due to injury from product defect, if plaintiff proves facts, the article is obviously dangerous if negligently made

iii. Bases: Negligence Foreseeability

Precursor to Palsgrafiv. defendant had duty to inspect despite buying wheels from reputable

manufacturer responsible for finished product

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more probable the danger, the greater the need for cautionII. Even after MacPherson, still hard to recover in case of manufacturer negligence

unless plaintiff had direct contractual relationship with defendanta. Chysky v. Drake Brothers

i. Plaintiff was waitress. Bites into cupcake made by Drake Brothers bakery; there’s a nail inside it. She couldn’t recover: couldn’t show negligence, no privity

ii. Bases Privity

because no privity between defendant and plaintiff, no warranties, express or implied

Implied warrantyiii. If plaintiff can’t show negligence, still need privity at this point

Couldn’t show negligence: didn’t know who messed up at bakery plant How can you have a nail in a cupcake without negligence?

res ipsa loquitur no exclusive control of instrumentality causing harm

baker deliveryperson restaurant waitressIII. An injured consumer of a defective product may recover directly from the

manufacturer for breach of the implied warranty of merchantability, despite the fact that zie never contracted with the manufacturer directly.

a. Warrantiesi. Express warranty: guarantee by words or pictures

Manufacturer represents that product will do a certain thingii. Implied warranties

merchantability Not recognized when Chysky decided Goods are reasonably suitable for ordinary uses for which goods of

that description are sold Probably most important kind of warranty now

fitness for a particular purpose Probably least important type of warranty Buyer relies on seller’s skill or judgment in selecting certain types of

goodsiii. MacPherson didn’t directly alter privity requirement for products-liability

actions based on warranty theoriesiv. After MacPherson, though, requirement of privity between manufacturer and

injured consumer for express warranties was erodedb. Henningsen v. Bloomfield Motors (Supreme Court of New Jersey, 1960)

i. Chrysler sold car with defective steering mechanism. Mr. H bought car from Chrysler dealer (Bloomfield). Gave car to wife. Very shortly thereafter, steering failed (wife not driving negligently, conditions good, etc.). Wife injured.

ii. Important in US law… for two propositions:

Warranty extends beyond original purchaser to third parties

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arguably, any people who are foreseeably injured as a result of defect

Ms. H didn’t buy, but husband did, so she’s a reasonably foreseeable user of the car

implied warranty without privity is same as strict liability strikes down disclaimer of implied warranties on grounds of

unconscionability contract of adhesion gross disparity of bargaining power

regarded as great liberal, pro-plaintiff breakthrough first strict liability case

since Escola was just concurrence (ideas but not actual decision)iii. bases

implied warranty foreseeability

iv. why not apply strict liability of food cases to autos? Both can bring harm to ppl

v. current legal climate not as pro-plaintiff since this case, people who can recover on implied-warranty have been cut

back many states limit to purchaser or family/household

G. Enter the doctrine of strict liability! Traynor in da house! Strict liability should apply when manufacturer places article on market and it turns out to have defect that causes injury to human beings

I. The ideas are present, but court not ready to hand down an actual strict-liability opinion.

a. Escola v. Coca Cola Bottling Co. (Supreme Court of California, 1944)i. Opinion: Plaintiff prevailed on res ipsa loquitur, but we don’t care about the

main opinion here: we want the concurrence.ii. Concurrence

Written by Roger Traynor Young justice on CA Supreme Court

Manufacturer incurs absolute liability when defective article placed on market without inspection injures somebody

magic word: defect Manufacturer responsible for injury caused to any person who comes

in lawful contact with article Even if manufacturer not negligent, they were still responsible for

product reaching market Loss minimization!

Manufacturer better able than public to anticipate hazards and guard against them

Risk of harm is constant and general Should be constant and general protection

Even if no negligence, public policy should set responsibility wherever it will most effectively reduce harm caused by defective products

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Loss distribution! Consequences may be disastrous for people injured by defective

projects But risk of injury can be insured by manufacturer and distributed

among public as cost of doing business Food sales covered by absolute liability

Why differentiate this from other products containing inherent dangers?

Manufacturer’s obligation to consumer doesn’t go away just because manufacturing/distribution of products now more complicated and with more intermediaries

Makes more sense to make manufacturer, rather than retailer, liable Retailer just conduit Retailer can’t test product

System of consumer suing retailer (who is under absolute liability to consumer r/e goods sold) retailer recouping by suing manufacturer is really wasteful

Consumer generally can’t figure out where negligence was res ipsa loquitur won’t always work

doesn’t work if manufacturer couldn’t uncover defect by reasonable inspection

but even in that case, we want to hold manufacturer liableII. time to stop screwing around, adopt strict liability in tort—actual decision this time,

people!a. Greenman v. Yuba Power Products, Inc. (Supreme Court of California, In Bank;

1963)i. Manufacturer makes and retailer sells power tool that can be used as saw,

drill, or lathe. Plaintiff buys. Using as lathe; piece of wood flies out and hits him in head; he’s severely injured. CA law requires 90 days’ notice to manufacturer of breach-of-warranty actions; plaintiff doesn’t give this.

ii. Roger T. in da house again: this time as chief justice!iii. A manufacturer is strictly liable in tort when an article he places on the

market, knowing that it is to be used without inspection for defects, proves to have a defect that causes an injury to a human being.

iv. Statute at issue doesn’t mandate that notice be given of breach of warranty outside of contract of sale

Inappropriate for court to use for injured consumers against manufacturers with whom they haven’t dealt

It’s fine as a commercial rule for immediate parties to sale But inappropriate for personal injuries and notice to remote seller

So even if plaintiff didn’t give timely notice here, he can still bring suit for representations made in brochure

v. Product liability is governed by law of strict liability in tort Manufacturer and plaintiff no longer have to have contract Liability not assumed by agreement but imposed by law

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Manufacturer can’t define scope of its own responsibility for defective products

vi. Strict liability exists to put costs of injuries from defective products on manufacturers that put them out rather than on injured people who can’t protect themselves

Sales warranties ineffective for thisvii. Putting machine on market implies that it’ll safely do what it’s built to doviii. To establish manufacturer’s liability, plaintiff just has to show that he was

injured while using product in the way it was intended to be usedIII. requirements for proving strict liability:

a. Defendant engaged in Business of selling productb. Product in defective condition Unreasonably dangerous to consumer/userc. Defect caused Injury for which compensation soughtd. Defect existed at time of Salee. Product expected to and did Reach consumer without substantial change in

conditionf. BUISR: Boris Uses Iodine, Silly Russian

H. Restatement sections on product liabilityI. Restatement (Second) §402A

a. Texti. One who sells any product in a defective condition unreasonably dangerous to

the user or consumer or to his property is subject to liability for physical harm thereby cause to the ultimate user or consumer, or to his property, if…

The seller is engaged in the business of selling such a product, and… It is expected to and does reach the user or consumer without substantial

change in the condition in which it is sold.ii. The rule stated in Subsection 1 applies although…

The seller has exercised all possible care in the preparation and sale of his product, and…

The user or consumer has not bought the product from or entered into any contractual relation with the seller.

b. “seller” = manufacturers, wholesalers, and retailersc. strict liability applies to personal and property damaged. using article for purpose for which it’s intended to be used is impliede. mid-1960s through mid-1980s: most states moving to strict liability did it via

adopting §402Ai. Almost every state has some form of strict products liability

Except for North Carolinaii. Most adopted principle of strict liability in tort

But some did more or less same thing but retained language of implied warranties

II. Law in state of changea. Restatement (Third) changed products liability section

i. precedents based on second Restatement But litigants will come in and cite third Restatement

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I. Design defectsI. Products function like they’re supposed toII. Most modern products-liability cases are design-defects casesIII. 2 ways to determine design defect

a. consumer expectation testi. factors

Unreasonably dangerous to ordinary consumer with ordinary knowledge common to community as to its characteristics

Manufacturer strictly liable for any condition not contemplated by ultimate consumer that will be unreasonably dangerous

ii. used by Restatement (Second)iii. disfavored by some courts because it puts foreseeability into strict tort liability

b. risk utility test:i. balancing test: product’s risks must outweigh its benefits based on factorsii. Sounds a lot like cost-benefit analysis

Cost-benefit: talking about actions of defendant Risk-utility: talking about state of product

iii. manufacturer has burden of proof that product’s risks don’t outweigh utilityiv. juries receive nonexclusive list of factors to apply

c. some states (CA) plaintiff can choose eitherd. Also possible to adopt a hybrid of these two

i. Potter v. Chicago Pneumatic Tool Co. (Supreme Court of Connecticut, 1997) Prior to this decision: CT had been using consumer-expectation test “feasible alternative design” requirements puts undue burden on plaintiffs

would have to use expert witness even in cases where lay jurors can infer design defect from circumstantial evidence

Product can still be defective even without feasible alternative design Shouldn't be on market at all!

Restatement (Third) requires it, but actually not used by majority of courts

Solution: incorporate risk-utility factors into ordinary-consumer-expectation analysis

With complex product designs, ordinary consumer might not be able to form expectations of safety

In these cases, view consumer expectations in light of factors balancing utility vs. risks

Feasible alternative design can be considered as one factor, but doesn’t have to be proven

strict liability still in effect! Jury focus on product itself, not manufacturer conduct

Ordinary-consumer-expectation test appropriate when everyday experience of product’s users allows inference that product didn’t meet minimum safety expectations

Use risk-utility only when facts of case don’t allow inference that product didn’t meet safety expectations of ordinary consumer

Can “state of the art” evidence apply to design defect claims?

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Confusion r/e term “state of the art” Some courts: industry custom Others: compliance with government regulation Majority: level of relevant scientific, technological, and safety

knowledge existing and reasonably feasible at time of design Courts also divided on whether “state of the art” evidence admissible

in design defect claims Some: it’s not

Focuses on manufacturer’s conduct, which is irrelevant in strict liability claim

provides manufacturer with safe harbor They should be responsible for doing full research r/e possible

dangers/defects in their own products Others: proving state of the art = complete defense Most say that it’s relevant

We’re going with this Helps jury determine whether product defective and

unreasonably dangerous We define it as level of relevant scientific, technological, and

safety knowledge existing and reasonably feasible at time of design

Helps to determine expectations of ordinary consumer Can also be factor in risk-utility test NOT affirmative defense

J. Defects: Failure to WarnI. Big area in tort law right nowII. Even if a danger is considered obvious, that obviousness does not substitute for a

warning.a. Liriano v. Hobart Corp. (US Court of Appeals, Second Circuit; 1999)

i. Plaintiff is 17-year-old immigrant. Has worked at groc store for a week. Meat grinder is 30 years old; manufactured with safety guard, but it’s missing and there’s no warning. Plaintiff never told how to use it. Plaintiff uses grinder, loses right hand and lower forearm. Part that injured him not visible from outside. Sues manufacturer of grinder claiming violation of duty to warn; manufacturer sez that groc store modified machine, and even if that isn’t defense, danger obvious.

ii. Back to Lorenzo v. Wirth Majority opinion similar to what Hobart is saying: can assume that people

have ordinary knowledge Bright-line

Dissent: conduct required in complex conditions for standard of due care is question of fact and thus question for jury

Defendants must foresee that there are people with less knowledge This is what most people follow now

iii. 2 categories of product warnings: How to use a product safely

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Directions, basically Let you know risks of product so that you can make informed decision

whether you want to use product This is why there should be warning on grinders

User needs to know r/e third alternative besides use it unsafely or don’t use it at all

Users of meat grinders will probably know that it’s dangerous to use one without a guard

But numbers of them might not know that guards available That using guards is realistic possibility And that they can ask for guards to be used

iv. Causation When defendant’s negligence deemed wrongful precisely because it has

strong propensity to cause injury that happened, that tendency is enough to establish prima facie case of cause-in-fact

The fact of accident under those conditions enough to support inference of but for causal connection between negligence and that accident

Burden shifts to defendant to prove that negligence not a but for cause

If nothing shown to break connection, this is prima facie–sufficient case of negligence contributing to result

but for cause have to have preponderance of evidence that injury wouldn’t have

happened but for this negligence but don’t have to rule out absolutely everything else

in duty-to-warn cases: not necessarily workable people will always say that they wouldn’t have gone through with

whatever it was so, better to use reasonable-person standard

objective testv. In Liriano, did defect exist when product left manufacturer?

If defect is failure to have guard, then no If defect is failure to have warning, then yes

Calabresi’s attempt to circumvent alteration issuevi. Post-sale product alteration: whether this constitutes strict liability is based on

foreseeability Foreseeable product alteration ≠ defense to products liability Unforeseeable product alteration/modification = defense

b. Change in tort law between Lorenzo and Lirianoi. Defendants in better position than plaintiffs to anticipate risks caused by

productsii. Let juries decide more issues

Withdraw fewer casesiii. Law seeks to protect those with less knowledge, less able to protect

themselves

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K. Plaintiff’s conductI. Misuse

a. In most jurisdictions, foreseeable misuse ≠ defenseb. Unforeseeable products misuse = defense

i. Not affirmative defenseii. Negates causation

II. contributory negligencea. 3 categories of plaintiff conduct that can provide defense for strict liability

i. plaintiff voluntarily and unreasonably encounters known riskii. plaintiff unreasonably fails to discover known riskiii. plaintiff fails to protect hirself (generic stupidity)

b. Restatement (Third): weigh plaintiff’s conduct against manufacturer’s conduct in comparative-fault analysis

c. The consumer or user is entitled to believe that the product will do the job for which it was built.

d. Consumer/user must exercise due care.i. Plaintiff may have departed from standard of reasonably prudent person, but

manufacturer may not haveii. When defendant claims that plaintiff failed to discover defect, must be

evidence that plaintiff didn’t meet standard of reasonable care But generally plaintiff has no reason to expect defect in new product and

little reason to be on guard to discover ite. West v. Caterpillar Tractor Company, Inc. (Supreme Court of Florida, 1976)

i. woman looking through purse and not paying attention, grader which had previously passed her backed up over her. contributory negligence didn’t fit any of set-out categories, court finds that her type of conduct will preclude recovery.

ii. What are the defects? Grader designed that driver had no means of seeing behind hir

No mirrors No beeping sound

iii. contributory negligence is defense when products-liability action based on negligence

iv. contributory negligence also defense if unreasonable use of product after discovery of defect and danger

v. decedent contributorily negligent: failed to protect herselff. Webb v. Navistar International Transportation Group (Vermont Supreme Court,

1996): all forms of plaintiff’s comparative fault reduce defendant’s liability No reason to impose cost of plaintiff’s negligence on manufacturer to

distribute among other consumers strict liability ≠ absolute liability

14. Intentional tortsA. Battery

I. intentional infliction of a harmful bodily contact upon anotherII. Test of Battery

a. Unconsented, offensive, or harmful contact

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b. With intent to cause such contact or apprehension of such contacti. purpose (subjective state of mind)ii. knowledge with substantial certainty

occupational injuries the specificity of substantial certainty makes the difference we accept actuarial risks all the time in that we know someone will be

hurt (workers at WTC, Bay Bridge) Legislative backlash against employees’ claims of batteries

Knowledge with substantial certainty is not a reason to circumvent worker’s comp.

iii. If defendant knew or should have known that his actions could cause harm to plaintiff, then he is liable for damages, even if intent not malicious.

Garratt v. Dailey (Supreme Court of Washington, 1955) P claims five-year-old deliberately pulled a chair out from underneath

her. Defendant claims that he was going to sit in it and when he realized that P was about to sit down he tried to put it back. Battery turns on D’s intent: did he know with substantial certainty that the bodily contact (plaintiff with ground) would occur (doesn’t require evil intent, only knowledge that contact is likely to occur)?

Law as discussed here: applies to adults Defendant’s age relevant in determining what he knew

III.Affirmative defensesa. Self-defenseb. Protection of third partyc. Protection of propertyd. Law-enforcement officerse. Parents to use discipline

B. Self-defenseI. if the circumstances surrounding defendant at the time would lead a reasonable

person to believe he was in danger of losing his life or having great bodily harm inflicted upon him, then he may use deadly force

a. Objective standard: reasonable personi. The reasonable perception of potential harm depends not just on plaintiff’s

actions but on entire situation. Courvoisier v. Raymond (Supreme Court of Colorado, 1896)

D asleep in bed when people break into jewelry store below apartment; riot ensues outside. Cop comes towards D and D shoots, thinking cop is rioter/burglar.

If jury believed that defendant justified in shooting one of the rioters, then important to determine whether defendant thought plaintiff was rioter

And if defendant believed plaintiff was rioter, was mistake excusable?

When defendant uses self-defense as justification, must satisfy jury that…

he acted honestly in using force

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that fears reasonable under circumstances means used were reasonable

b. Amount of forcei. Deadly force is ONLY allowed if you think you are about to lose your life or

have great bodily harmii. However, you can use reasonable force when any harm will be put upon you

II. Protection of propertya. you can use reasonable force to defend your propertyb. Can use reasonable force to eject someone who initially had permission to be on

property, but whose permission has been lawfully revokedc. A property owner may not use deadly force to defend property against a

trespasser unless trespasser is committing a felony of violence or endangering human life.

i. You cannot use force indirectly that you couldn’t use if you were actually present

Katko v. Briney (Supreme Court of Iowa, 1971) D set up spring gun in abandoned house that was having problems

with break-ins; P broke in and was shot; D couldn’t have shot P if he had been there… no threat to life or gross bodily harm so he can’t use deadly force.

If deadly force is only way to prevent trespass, still can’t use itii. Exception: In southern or western states, deadly force is often permissible in

protecting property. iii. When a notice is posted that the property will be protected with deadly force,

but P proceeds anyway, P will probably not succeed at trial because he consented

III. Can use force to regain possession of something under following conditions:a. Person using force must have been in previous possessionb. Property must have been tortiously taken either forcibly or by fraud or without

claim of rightc. Actor must be entitled to immediate possessiond. Recapture must be effected promptlye. Have to ask for it back firstf. Force can’t be excessive

IV. Repossessiona. Can’t use force to reclaim something under conditional sales contractb. can take collateral without judicial process, but only if it can be done without

breach of peaceC. Assault

I. Creating apprehension of imminent physical violence caused by D’s action or threat with an intent to cause the apprehension of harmful or offensive bodily contact or to cause the harmful or offensive bodily contact

a. Accompanied with apparent present ability to give effect to the attempt if not prevented

b. No bodily contact is actually required, but ordinarily words are not enough unless threat is one of imminent physical harm

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i. Brower v. Ackerley (Washington Court of Appeals, 1997) D uses billboards illegally and P reported them; D made threatening phone

calls to P; no assault b/c no threat of imminent physical harm.ii. When dealing with verbal attacks, infliction of emotional distress is better

cause of actionc. Apprehension is an obj. standard

II. Can use same affirmative defenses as for batteryD. Intentional infliction of emotional distress

I. 3 elementsa. extreme and outrageous conduct (has to be really over the top)

i. This must be in and of itself evidence of level of emotional distressb. intentional or reckless infliction of emotional distressc. actual result to P of severe emotional harm

i. Best way to prove: doctorII. P’s case of intentional infliction of emotional distress can go to jury b/c first two

elements are undisputed a. Brower v. Ackerley, round two

E. False imprisonmentI. conduct by actor which is intended to and does in fact confine another within

boundaries fixed by the actor; in addition, the victim is either conscious of confinement or is harmed by it.

a. Confining someone within city: false imprisonmentb. Confining someone within country: not false imprisonment

II. Actual physical force is not requireda. implicit threats: false assertion of lawful authority to confineb. explicit threats of physical force

III. McCann v. Wal-Mart StoresIV. P was attempting to leave after shopping, and D detained her and her children

because they believed that P’s children had shoplifted previously. D told P that the police were being called, and that P had to go with them to wait. P believed this. D also did not permit P’s son to use the bathroom.

V. Exception: shopkeepers privilegea. with reasonable basis to believe that someone has shoplifted from store, owner

may stop them until reasonable investigation into incident has occurred i. has to be based on suspected theft that day

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